I 


1 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


112  Washington  St.,  Boston, 
July  1,  1857. 


LAW   BOOKS, 

RECENTLY  PUBLISHED  BY 

LITTLE,    BROWN    AND    COMPANY, 

LAW  AND  FOREIGN  BOOKSELLERS. 


[fcp"  Orders  by  letter  for  any  of  these  publications  will  be  promptly  a£t?B<  ed  to,  and 
bound  volume   sent  by  mail  to  any  post-office  in  the  United  Stai 


We  invite  the  attention  of  the  profession  to  our  extensive  and  continually  increas- 
ing stock  of  Law  Books,  both  Foreign  and  Domestic,  embracing  every  branch  and 
department  of  Jurisprudence,  including  many  rare  and  valuable  French  works. 
Catalogues  may  be  had  upon  application. 


DIGEST  OF  ENGLISH  REPORTS. 

A  DIGEST  OF  THE  DECISIONS  OF  THE  COURTS  OF 
ENGLAND,  contained  in  the  English  Law  and  Equity  Reports, 
from  the  first  volume  to  the  thirty-first  inclusive.  By  Chauncey 
Smith,  Esq.     8vo.     Price,  $5.50. 

This  Digest  contains  an  abstract  of  about  forty-five  hundred  cases  decided 
in  the  several  Chancery,  Common  Law,  Criminal,  Admiralty,  and  Eccle- 
siastical Courts,  and  a  complete  synopsis  of  the  decisions  of  the  English 
courts  for  a  period  of  five  years. 

It  has  been  carefully  prepared,  with  particular  reference  to  the  conven- 
ience of  the  profession  in  this  country.  Every  practitioner  has  felt,  in  the 
use  of  the  English  digests,  the  embarrassments  to  which  the  difference  in 
the  practice  of  the  two  countries  subjects  the  American  lawyer  in  the  use 
of  a  book  prepared  expressly  for  the  profession  in  England. 

A  digest  is  a  labor-saving  device  for  economizing  the  time  of  a  lawyer ; 
and  any  expedient  which  tends  to  promote  that  object  adds  to  the  value  of 
the  work.  The  Law  and  Equity  Digest  contains  one  feature  of  great 
utility :  the  abstract  of  each  case  has,  at  its  commencement,  a  caption  in 
Italics,  indicatii  *  the  point  decided,  and  enabling  the  examiner  to  deter- 
mine at  a  glanc  -  if  the  case  is  one  which  he  desires  to  consult. 

The  table  of  cases  is  also  more  full  and  complete  than  any  other  which 
has  been  published  in  this  country.  It  contains  a  reference  not  only  to  the 
Law  and  Equity  Reports,  but  to  all  the  different  series  published  in  Eng- 
land or  reprinted  in  this  country,  and  enables  the  lawyer  to  find  any  case 

1 


cited  from  any  of  these.  By  this  means,  the  Digest  is  made  an  index  to  all 
the  English  Reports,  and  may  be  used  with  greater  convenience  than  any 
other  digest  of  English  cases  published  in  this  country. 

"  It  well  deserves  to  find  a  place  upon  the  shelves  of  every  lawyer,  as  a  neat  state- 
ment of  principles,  and  a  reliable  reference  to  adjudged  cases.  To  those  who  have 
purchased  or  may  procure  the  Reports  digested,  it  is  an  indispensable  adjunct  to  a 
series  which  cannot  otherwise  be  complete.  To  those  conversant  with  the  laws  of 
England  the  digest  before  vis  will  serve  to  refresh  the  memory.  To  those  who  are  not 
familiar  with  the  cases  decided  by  the  courts  of  the  mother  country,  it  will  serve  as  a 
source  of  valuable  information  given  in  a  condensed  form.  To  all  it  will  prove  an 
easy  and  speedy  mode  of  acquiring  legal  information,  which  can  be  enlarged  upon  as 
necessity  requires,  by  examining  the  cases  referred  to  in  the  digest."  —  Louisville 
Journal. 

"  This  necessary  companion  to  the  English  Law  and  Equity  Reports  is  a  most  cred- 
itable performance.  The  cases  are  very  fully  set  out;  the  analytical  arrangement  is 
excellent.     The  book  will  greatly  facilitate  the  work  of  research. 

"  The  table  is  a  most  important  addition  to  the  work,  and  the  references  in  each 
case  is  not  only  to  the  volume  of  the  Law  and  Equity  Reports  where  it  is  to  be  found, 
but  also  to  the  various  Engljsh  publications :  this  last  more  valuable  to  us  than  to  the 
profession  in  the  United  States.     There  is  also  a  reference  to  the  page  of  the  Digest. 

"Every  one  who  possesses  the  Law  and  Equity  Reports  will  of  course  procure  a 
copy  of  this  Digest;  but  apart  from  its  worth  in  connection  with  the  series  to  which 
it  belongs,  it  possesses  sufficient  intrinsic  value  to  commend  it  to  the  favorable  notice 
of  the  profession  here  and  elsewhere."  —  Upper  Canada  Law  Journal. 

"  From  our  examination  of  this  Digest,  we  believe  it  to  be  an  excellent  one,  and 
that  it  will  compare  well  with  any  of  its  contemporaries."  — Law  Reporter. 


ENGLISH  LAW  AND  EQUITY  REPORTS. 

REPUBLICATION  OF  THE  ENGLISH  REPORTS  IN  FULL. 

CONTAINING  THE  REPORTS  OF  ALL  THE  CASES  be- 
fore the  House  of  Lords,  Privy  Council,  the  Lord  Chancellor,  the 
High  Court  of  Appeal  in  Chancery,  all  the  Common  Law  Courts, 
the  Court  of  Criminal  Appeal,  and  the  Admiralty  and  Ecclesiasti- 
cal Courts. 

The  cheapest,  most  complete  and  reliable  series  of  English  Reports 
issued  in  this  country. 

Vols.  I.  to  XXXVII.  now  ready  for  delivery,  at  $2  per  volume. 

"  We  have  so  repeatedly  expressed  the  high  opinion  which,  in  common  with  the 
mass  of  the  legal  profession,  we  entertain  of  this  series  of  reports,  that  it  would  be 
entirely  superfluous  to  say  any  thing  more  on  the  subject  at  present.  No  lawyer  who 
endeavors  to  keep  pace  with  the  science  of  the  common  law  and  equity  jurispru- 
dence can  succeed  without  the  regular  study  of  the  English  as  well  as  the  American 
reports."  —  New  York  Commercial  Advertiser. 

"  We  cannot  but  regard  this  as  in  every  light  a  most  important  and  valuable  work 
to  the  legal  profession,  and  eminently  worthy  of  their  patronage;  while  the  fact  that  a 
publication  so  extensive,  and  requiring  so  great  an  outlay  of  capital,  can  be  sustained 
in  this  country,  gives  a  gratifying  evidence  that  the  Bar  are,  more  than  in  former 
years,  disposed  to  the  study  of  the  science  of  which  they  are  the  votaries."  —  /?*. 
Louis  Hejjublican. 


UNITED    STATES    SUPREME    COURT   DECISIONS. 

JUDGE    CURTIS'S   EDITION. 

REPORTS  OF  DECISIONS  IN  THE  SUPREME  COURT  OF 
THE  UNITED  STATES.  With  Notes  and  a  Digest.  By  B. 
R.  Curtis,  one  of  the  Associate  Justices  of  the  Court.  In  22 
vols.  8vo,  including  a  Digest. 

These  Reports  comprise  the  Cases  reported  hy  Dallas,  4  vols. ;  Cranch,  9 
vols.;  Wheaton,  12  vols.;  Peters,  16  vols.;  Howard,  17  vols.;  in  all,  58 
vols.  They  comprise  the  entire  period  from  the  origin  of  the  Court  to  the 
end  of  the  seventeenth  volume  of  Howard. 

The  Catalogue-price  of  the  Old  Series  is  $222.  Judge  Curtis's  Edition 
is  offered  at  the  low  price  of  $3  a  volume,  or  ftGC'Tor  the  whole,  including 
the  Digest. 

The  opinions  of  the  Court  are,  in  all  cases,  given  as  they  have  been  printed  by  the 
authorized  reporters,  after  correcting  such  errors  of  the  press  or  of  citation  as  a  care- 
ful examination  of  the  text  has  disclosed.  I  have  endeavored ''to  give,  in  the  head- 
notes,  the  substance  of  each  decision.  They  are  designed  to  show  the  points  decided 
by  the  Court,  not  the  dicta  or  reasonings  of  the  Judges.  To  each  case  is  appended  a 
note  referring  to  all  subsequent  decisions  in  which  the  case  in  the  text  has  been  men- 
tioned. It  will  thus  be  easy  to  ascertain  whether  a  decision  has  been  overruled, 
doubted,  qualified,  explained,  or  affirmed ;  and  to  see  what  other  applications  have 
been  made  of  the  same  or  analogous  principles.  — Extract  from  the  Preface. 

"  A  work  which  is  unquestionably  the  most  useful  and  valuable  addition  that  has 
been  made  to  the  legal  literature  of  this  country  for  many  years,  and  which  can  never 
be  superseded.  This  appreciation  of  its  merits  is  concurred  in  by  all  the  Justices  of 
the  Supreme  Court,  by  the  Attorney-General,  and  by  all  the  eminent  members  of  the 
bar  who  have  expressed  any  opinion  on  the  subject." — New  York  Commercial  Ad- 
vertiser. 

"  The  complete  work  is  a  monument  of  skilful  editorial  labor  and  judicious  pub- 
lishing enterprise.  No  greater  service  has  at  one  time  been  rendered  to  the  legal  pro- 
fession in  this  country,  than  by  the  issuing  of  this  series  of  the  decisions  of  our  highest 
Court."  —  New  York  Daily  Times. 

"  It  is  no  more  than  justice  to  say,  that  the  eminent  character  of  the  editorship,  the 
nature  of  the  matter,  and  the  elegance  of  the  printing,  combine  to  make  it  one  of  the 
most  valuable  legal  works  ever  issued."  —  Boston  Post. 

"As  we  have  done  before,  we  commend  this  republication  to  the  patronage  of  the 
bar.  No  lawyer  could  make  an  addition  of  greater  and  more  permanent  value  to  his 
library;  as  certainly  none  could  be  made  in  which  so  large  an  amount  of  matter  could 
be  obtained  at  so  small  a  price."  —  St.  Louis  Republican. 

"  It  is  almost  indispensable,  that  every  lawyer's  library,  which  aspires  to  any  thing 
approaching  completeness,  should  contain  the  Reports  of  the  decisions  of  the  national 
tribunal,  which,  before  this  edition,  was  a  severe  tax.  The  work  is  done  with  neat- 
ness, and  accuracy,  and  taste.  The  Digest  is  all  that  could  be  desired,  and  much 
needed,  and  with  the  Notes  of  the  Edition,  will  prove  of  great  convenience  to  the  pro- 
fession." —  Judge  Redjield. 


CURTIS'S    DIGEST 

OF    THE 

UNITED  STATES  SUPREME  COURT  DECISIONS. 

A   DIGEST    OF    THE    DECISIONS    OF    THE    SUPREME 
COURT  OF  THE  UNITED  STATES,  from  the  origin  of  the 


Court  to  the  close  of  the  December  Term,  1854.    By  B.  E.  Cur- 
tis, one  of  the  Associate  Justices  of  the  Court.    1  vol.  8vo.    Price, 

$5.50. 

This  Digest  embraces  all  the  published  decisions'of  the  Supreme  Court 
down  to  the  present  time,  including  seventeenth  Howard.  It  is  so  arranged 
that  it  may  be  used  in  connection  with  the  Reports  of  Messrs.  Dallas, 
Cranch,  Wheaton,  Peters,  and  Howard,  or  with  the  twenty-one  volumes  of 
decisions  as  published  by  Mr.  Justice  Curtis  (of  which  it  forms  the  twenty- 
second  volume). 

It  contains  a  table  of  all  Acts  of  Congress  construed  or  referred  to  by  the 
Court  in  their  opinions,  arranged  in  chronological  order ;  with  references  to 
the  cases,  and  an  appendix  of  practical  directions  for  prosecuting  writs  of 
error  and  appeals  to  the  Supreme  Court  of  the  United  States,  with  the 
necessary  forms  ;  and  also  a  table  of  the  cases  decided,  and  another  of  the 
cases  cited  by  the  Court  in  their  opinions. 


Cushing's  Reports,  Vol.  X. 

REPORTS  OF  CASES  ARGUED  AND  DETERMINED  IN 
THE  SUPREME  JUDICIAL  COURT  OF  MASSACHU- 
SETTS.    By  Luther  S.  Cushing.     Vol.  X.,  8vo.     $5.00. 


Gray's  Reports,  Vol.  III. 

REPORTS  OF  CASES  ARGUED  AND  DETERMINED  IN 
THE  SUPREME  JUDICIAL  COURT  OF  MASSACHU- 
SETTS.   By  Horace  Grat,  Jr.    Vol.  III.,  8vo.    $5.00. 


Curtis's  Circuit  Court  Reports,  Vol.  II. 

REPORTS  OF  CASES  ARGUED  AND  DETERMINED  IN 
THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR 
THE  FIRST  CIRCUIT.  By  Hon.  B.  R.  Curtis,  Judge  of  the 
U.  S.  Supreme  Court.     Vol.  II.,  8vo.     $5.50. 


Parsons  on  Mercantile  Law. 

THE  ELEMENTS  OF  MERCANTILE  LAW.  By  Theophi- 
lus  Parsons,  LL.  D.,  Dane  Professor  of  Law  in  Harvard  Uni- 
versity.    1  vol.  8vo.    $5.50. 

"  This  volume  should  be  read  by  every  commercial  lawyer,  if  for  no  other  purpose 
than  to  refresh  the  memory  upon  topics  which  may  have  been  once  familiar. 
"  A  lawyer  in  practice  is  often  called  upon  to  investigate  particular  questions,  but 


he  is  not  called  in  a  lifetime  over  the  whole  field  of  commercial  law.  He  needs  occa- 
sionally to  read  a  text-book  to  refresh  his  memory  upon  the  subject  generally,  to  pre- 
pare himself  for  the  investigation  of  particular  questions.  This  volume  appears  to  be 
just  the  work  for  this  purpose. 

"  We  think  this  volume  will  also  be  useful  and  acceptable  to  intelligent  merchants. 
Neither  this  work,  or  any  other,  will  point  out  to  a  merchant  the  way  out  of  difficulty 
when  he  is  once  involved  in  it,  but  it  will  give  him  a  clearer  idea  of  his  rights  and 
obligations,  and  thus  save  him  from  the  difficulties  into  which  he  might  otherwise 
fall."  —  Boston  Post. 

"ilt  is  no  small  praise  to  say  that  the  work  before  us  justifies  the  expectation  which 
the  position  of  its  author  inevitably  raises.  It  is  simple,  and  yet  profound;  extensive 
in  its  scope,  and  yet  eminently  terse  and  condensed;  it  is  an  excellent  guide  to  the 
student,  and  no  less  capable  of  being  made  useful  to  the  learned  practitioner."  —  New 
York  Evening  Post. 

"  We  cannot  speak  too  strongly  of  the  value  to  mercantile  men  of  works  which,  like 
this,  explain  and  illustrate  the  principles  upon  which  business  should  be  conducted. 
This  volume  —  a  good  book  for  the  lawyer—  is  a  capital  book  for  the  merchant.  We 
do  not  think  any  young  man  on  the  threshold  of  business  can  read  this  volume  care- 
fully, and  remeniber  what  he  reads  —  he  cannot  help  understanding  it  —  without 
adding  twenty-five  per  cent,  to  the  value  of  his  services  in  any  commercial  employ- 
ment."—  Hunt's  Merchants'  Magazine. 


Story  on  Contracts. 

A  TREATISE  ON  THE  LAW  OF  CONTRACTS.  By  Wil- 
liam W.  Story,  Esq.  Fourth  Edition.  Revised  and  greatly 
enlarged.     2  vols.  8vo.    $11.00. 

"  The  law  of  contracts  is  the  widest  department  in  the  science  of  jurisprudence,  and 
is  of  the  most  general  application.  The  legal  practitioner  needs  to  consult  it  almost 
constantly,  so  that  the  latest,  the  most  copious  and  best  arranged  digest  of  authorities 
is  always  of  the  greatest  utility  to  him.  This  enlarged  and  practical  treatise  by  Mr. 
Story  is  therefore  certain  to  be  welcomed  by  lawyers  who  are  actively  engaged  in 
professional  business."  —  N.  Y.  Com.  Advertiser. 


Leading  Criminal  Cases. 

A  SELECTION  OF  LEADING  CASES  IN  CRIMINAL  LAW: 

with  Notes.     By  Edmund  Hastings  Bennett,  and   Franklin 
Fiske  Heard.     Vol.  I.,  8vo.     $5.00. 

"  We  do  not  hesitate  to  say  that  this  will  be  found  an  exceedingly  useful  and  con- 
venient work  to  the  student  or  the  practitioner  of  criminal  law,  and  we  trust  it  may 
be  extended."  —  N.  Y.  Evening  Post. 

"  The  selected  cases  are  taken  from  both  British  and  American  Reports,  and  the 
editors,  in  preparing  their  notes,  seem  to  have  faithfully  explored  the  whole  field  of 
English,  Irish,  and  American  adjudication,  and  to  have  embodied  the  result  in  a  clear, 
systematic,  and  condensed  manner.  We  cannot  doubt  that  the  work  will  speedily 
attain  a  high  repute,  and  be,  in  all  respects,  a  valuable  aid  to  all  concerned  in  the 
administration  of  the  branch  of  the  law  of  which  it  treats."  —  St.  Louis  Republican. 


Walker's  Introduction. 

INTRODUCTION  TO  AMERICAN  LAW ;  Designed  as  a  First 
Book  for  Students,  by  Timothy  Walker,  LL.  D.,  late  Professor 


of  Law  in  the  Cincinnati  College.     Third  Edition,  enlarged  and 
revised.     8vo.     $5.50. 

"  We  take  leave  of  Mr.  Walker  with  grateful  acknowledgments  for  the  pleasure 
with  which  we  have  read  his  work,  and  repeat  our  sense  of  its  value  as  an  accession 
to  our  legal  literature.  We  have  found  in  it  much  to  admire  and  very  little  to  qualify 
that  admiration.  Its  systematic  arrangement,  its  comprehensiveness,  its  accuracy, 
and  its  clear  simplicity  of  style,  will  inevitably  rescue  it  from  the  fate  of  that  crowd 
of  law-books,  whose  'dissoluble  fragments  '  the  waves  of  time  are  perpetually  wash- 
ing away.  The  intelligent  student  will  value  it  as  a  clear-sighted  guide  in  the  early 
stages  of  his  toilsome  pilgrimage,  and  the  accomplished  lawyer,  if  he  be  free  from  the 
narrow  prejudices  which  the  profession  sometimes  engenders,  will  not  turn  away  with 
disdain  from  its  unpretending  pages,  for  though  it  does  not  pretend  to  teach  him  any 
thing  new,  lie  will  esteem  it  for  the  manifestation  of  a  vigorous,  reflective,  and  accom- 
plished mind,  which  he  will  everywhere  find  in  it." —  American  Jurist. 

"  It  would  be  difficult  to  find  seven  hundred  and  fifty  pages  which  give  a  more  just 
and  complete  idea  of  what  law  is,  or  furnish  so  desirable  an  outline,  whether  the 
reader's  object  is  to  obtain  a  general  knowledge  of  the  science,  or  to  prepare  himself 
for  a  full  and  thorough  investigation  of  its  departments,  or  merely  to  determine  his 
own  aptitude  for  the  profession  whose  domain  it  covers.  It  is  not  characterized  by 
that  too  sententious  brevity  which  renders  some  elementary  treatises  the  dry  and  re- 
pulsive enumeration  of  stiff  generalizations,  while  it  avoids  that  protracted  discussion 
which  can  only  be  compassed  by  many  ponderous  tomes.  The  style  is  simple,  and 
technicalities  are  translated  into  common  phrase.  The  author's  enunciations  of  prin- 
ciples arc  decisive,  but  marked  by  a  prudent  regard  for  authority."  —  Boston  Ad- 
vertiser. 

"  This  treatise  is  designed,  as  the  title-page  states,  to  introduce  students  of  the  law 
to  their  chosen  profession,  and  we  have  the  authority  of  eminent  lawyers  that  it 
answers  this  purpose  better  than  auy  of  its  predecessors."  —  Chicago  Tribune. 


Wheaton's  International  Law. 

ELEMENTS  OF  INTERNATIONAL  LAW.  By  the  late  Hon. 
Henry  Wiieaton.  Sixth  Edition,  Revised,  Annotated,  and 
brought  down  to  the  present  time,  with  a  Biographical  Notice  of 
Mr.  Wheaton,  and  an  Account  of  the  Diplomatic  Transactions  in 
which  he  was  concerned.  By  Hon.  William  Beach  Lawrence, 
formerly  Charge  d' Affaires  at  London.     8vo.     $G.00. 

"  After  the  unqualified  praises  which  the  most  distinguished  jurists  and  publicists  of 
America  and  Europe  have  united  in  bestowing  upon  Dr.  Wheaton's  Elements  of  In- 
ternational Law,  and  when  the  work  has  become  a  standard  authority,  constantly 
recognized  by  diplomatists  in  all  parts  of  the  world,  we  think  it  would  be  quite  super- 
fluous to  enlarge  upon  its  merits.  Wheaton's  preeminence  in  the  law  of  nations  is  as 
firmly  established  as  that  of  Kent  and  Story  in  municipal  law,  anil  his  name  will,  like 
theirs,  reflect  honor  upon  our  country  through  all  time."  —  N.  Y.  Com.  Advertiser. 

"  Wheaton's  work  is  now  everywhere  regarded  as  an  authority  in  questions  of  the 
Law  of  Nations.  Mr.  Lawrence,"m  his  introductory  remarks,  says  that  '  in  the  cabi- 
nets of  Europe  it  has  replaced  the  elegant  treatise  of  Vattel.'  It  is  more  generally  cited, 
we  believe,  in  courts,  than  any  other  treatise  on  public  law."  —  N.  Y.  Eve.  Post. 


Ware's  Reports. 

REPORTS  OF  CASES  argued  and  determined  in  the  District 
Court  of  the  United  States  for  the  District  of  Maine.  Second 
Edition,  revised  and  corrected  by  Ashdr  Ware.     8vo.    $5.50. 


Cushing's  Parliamentary  Law. 

ELEMENTS  OF  THE  LAW  AND  PRACTICE  OF  LEGIS- 
LATIVE ASSEMBLIES  IN  THE  UNITED  STATES  OF 
AMERICA,  by  Luther  Stearns  Cushing.     Royal  8vo.   $5.00. 


U.  S.  Annual  Digest,  1855. 

UNITED  STATES  DIGEST ;  Containing  a  Digest  of  the  Decis- 
ions of  the  Courts  of  Common  Law,  Equity,  and  Admiralty  in  the 
United  States  and  in  England,  for  the  year  1855.  By  John 
Phelps  Putnam,  Esq.     Royal  8vo.     $5.00. 


LAW    BOOKS    IN    PRESS 

AND   PREPARING  FOR  PUBLICATION. 


I. 

A  SELECTION  OF  LEADING  CASES  ON  ADMIRALTY 
LAW,  with  Notes,  by  B.  R.  Curtis,  LL.  D. 

II. 

AMERICAN  RAILWAY  CASES.  Edited  by  Chauncey  Smith 
and  S.  W.  Bates,  Esqs.     Vol.  3. 

III. 

UNITED  STATES  DIGEST;  containing  a  Digest  of  the  Decis- 
ions of  the  Courts  of  Common  Law,  Equity,  and  Admiralty  in  the 
United  States  and  in  England,  for  the  year  1856.  By  George 
S.  Hale,  Esq.     Royal  8vo. 

IV. 

A  TREATISE  ON  THE  REVENUE  LAWS  OF  THE 
UNITED  STATES,  by  C.  C.  Andrews,  Esq.     1  vol.  8vo. 


COMMENTARIES  ON  CRIMINAL  LAW.  By  Joel  Pren- 
tiss Bishop,  Esq.,  author  of  "  Commentaries  on  the  Law  of 
Marriage  and  Divorce."  Vol.  II.,  containing  the  Law  of  Specific 
Offences. 

VI. 

THE   PRINCIPLE   AND    RULES    OF   LAW   regulating    the 

Property  of  Husband  and  Wife,  and  Civil  Actions  therefor.     By 
Hon.  Edward  G.  Loring. 


VII. 

A  TREATISE  ON  MARITIME  CONTRACTS.  By  Hon.  The- 
ophilus  Parsons,  LL.D.,  Dane  Professor  in  the  Law  School  of 
Harvard  University.     2  vols.  8vo. 

vni. 

A  TREATISE  ON  THE  LAW  OF  RAILWAYS.  By  Isaac 
F.  Redfield,  LL.D.,  Chief  Justice  of  Vermont.  1  vol.  8vo. 
(Ready  in  October.) 

IX. 

THE  LAW  OF  VENDORS  AND  PURCHASERS  OF  REAL 
PROPERTY.     By  Francis  Hilliard,  Esq. 

X. 

A  TREATISE  ON  THE  LAW  OF  HIGHWAYS,  Dedication  of 
Travelling,  Travellers,  etc. ;  by  Joseph  K.  Angell.     1  vol.  8vo. 

XI. 

ARBITRATION  AT  COMMON  LAW  — In  Equity,  and  under 
the  Statutes  of  the  States  of  the  United  States.  By  the  Hon. 
Edward  G.  Loring.     1  vol.  8vo. 

XII. 

A  TREATISE  ON  THE  CONSTRUCTION  OF  THE  STAT- 
UTE OF  FRAUDS.     By  C.  Browne,  Esq.     1  vol.  8vo. 

This  book  will  aim  to  present  a  full  view  of  the  Law,  as  held  by  the  English  and 
American  Courts,  upon  the  constructiou  of  the  Statute  29  Car.  11,  cap.  3,  with  the 
modifications  under  which  it  has  been  adopted  in  the  different  States  of  the  Union. 
Comprising  the  latest  rulings  in  both  countries,  with  an  appendix,  giving  an  analytic 
view  of  the  English  and  American  enactments,  with  their  successive  alterations. 

XIII. 

A  TREATISE  ON  THE  LAW  OF  BANKRUPTCY  AND 
INSOLVENCY.     By  a  member  of  the  Boston  Bar.     1  vol.  8vo. 

XIV. 

REPORTS  OF  CASES  ARGUED  AND  DETERMINED  IN 
THE  SUPREME  JUDICIAL  COURT  OF  MASSACHU- 
SETTS.    By  Horace  Gray,  Jr.  Esq.     Vol.  IV. 

xv. 

REPORTS  OF  CASES  ARGUED  AND  DETERMINED  IN 
THE  SUPREME  JUDICIAL  COURT  OF  MASSACHU- 
SETTS.    By  Hon.  Luther  S.  Cushing.     Vol.  XI. 

XVI. 

LAW  AND  EQUITY  REPORTS.  The  Common  Law,  Equity, 
Criminal,  Admiralty,  and  Ecclesiastical  Reports  combined.  Edited 
by  Chauncey  Smith,  Esq.     Vol.  XXXVIII. 


DIGEST 


THE  LAW  OF  REAL  PROPERTY. 


BY  WILLIAM  CRUISE,  ESQ. 

BAP.RISTER    AT    LAW. 


REVISED    AND    CONSIDERABLY    ENLARGED 

BY  HENRY  HOPLEY  WHITE,  ESQ. 

BARRISTER  AT  LAW,  OF  THE  MIDDLE  TEMPLE. 


FURTHER    REVISED    AND  ABRIDGED,  WITH  ADDITIONS   AND   NOTES   FOR   THE 
USE   OF   AMERICAN   STUDENTS, 

BY    SIMON  GREENLEAF,  LL.D. 

EMERITUS  PROFESSOR  OF  LAW  EN  HARVARD  UNIVERSITY. 


IN  SEVEN  VOLUMES. 


VOLUME  I. 

CONTAINING 

A  PRELIMINARY  DISSERTATION  ON  TENURES. 

Title  1.  Estate  in  fee  simple. 

2.  Estate  in  tail. 

3.  Estate  for  life. 

4.  Estate  tail  after  possi- 

bility. 

5.  Curtesy. 

6.  Dower. 


Title  7.  Jointure. 

8.  Estate  for  years. 

9.  Estate  at  will  and  at 
sufferance. 

10.  Copyhold. 

11.  Use. 

12.  Trust. 


SECOND     EDITION. 


BOSTON: 
LITTLE,    BROWN    AND     COMPANY. 

1856. 


Entered  according  to  Act  of  Congress,  in  the  year  1856, 

By  James  Greenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

T~ 
C  K 


RIVERSIDE,     CAMBRIDGE: 
PRINTED   BY  H.   O.   HOUGHTON  AND   COMPANY. 


TO 
MY    BELOVED    PUPILS 

THESE     LABORS, 

ORIGINALLY  UNDERTAKEN  FOR  THEIR  BENEFIT, 

ARE 

INSCRIBED, 

BY    THEIR    AFFECTIONATE    FRIEND, 

SIMON  GREENLEAF. 


671571 


THE 


ENGLISH   EDITOR'S   PREFACE 


It  is  now  thirty  years  since  Mr.  Cruise's  Digest  of  the 
Law  of  Real  Property  was  first  published.  During  that 
time  it  has  gone  through  three  large  editions  ;  and  a 
fourth  being  required,  is  such  unequivocal  proof  of  merit, 
that  it  would  be  inpertinent,  in  this  place,  to  attempt  any 
commendation  of  a  work,  already  so  strongly  impressed 
with  the  stamp  of  public  approbation. 

In  preparing  the  present,  the  Editor  has  carefully  en- 
deavored to  preserve  the  integrity  of  the  text  of  the  third 
edition  ;  and  in  almost  every  instance,  the  corrections, 
alterations,  and  additions  will  be  found  within  brackets. 
He  has  corrected  whatever  errors  were  discovered,  either 
in  the  statements  of  the  cases  cited  by  Mr.  Cruise,  or  in 
his  conclusions  ;  and  has  added  the  leading  authorities 
reported  since  the  publication  of  the  ttiird  edition.' 

The  several  statutes,  lately  effecting  important  and  ex- 
tensive changes  in  the  law  of  real  property,  very  much 
increased  the  anxiety  and.  responsibility  of  the  laborious 
task  undertaken  by  the  Editor;  and  in  the  execution  of 


vi  ENGLISH   EDITOR  S   PREFACE. 

that  portion  of  his  duty  more  particularly,  he  feels  some 
claim  must  be  made  upon  the  indulgence  of  the  profession. 
He  cannot  be  so  sanguine  in  the  success  of  his  efforts,  as 
to  suppose  there  are  not  many  instances,  in  which  the  bear- 
ings of  these  statutes  upon  the  old  law  have  escaped  his 
attention.  Indeed,  many  years  must  elapse  before  all  the 
consequences  of  the  changes  can  be  known. 

Nearly  1100  cases,  either  stated  or  referred  to,  have 
been  added  in  the  present  edition,  and  these  are  distin- 
guished in  the  Index  of  Cases  by  an  asterisk. 

The  Editor  is  responsible  for  Chapter  XVI.  on  Powers 
of  Sale  and  Exchange,  under  the  title  Deed,  Vol.  IV.; 
and  for  the  additional  Chapter  on  Merger,  Vol.  VI.  For 
the  insertion  of  the  latter,  an  apology  is  not  deemed  neces- 
sary, the  subject  being  important,  and  but  incidentally 
noticed  by  Mr.  Cruise.  The  Editor  most  fully  acknowl- 
edges his  obligations  to  the  valuable  labors  of  Mr.  Preston, 
in  his  third  volume  of  Conveyancing :  but  thinking  the 
subject  of  Merger,  not  exhausted,  and  that  a  short  treatise 
upon  it  would  be  acceptable,  he  ventured  to  insert  the 
Chapter  under  Tit.  XXXIX. 

The  Acts  relating  to  real  property,  passed  in  the  last 
session  of  Parliament,  and  subsequently  to  the  printing 
of  the  fifth  volume,  have  been  inserted  or  abridged  in 
an  Appendix,  Vol.  VII. ;  and  through  this  medium,  the 
Editor  has  offered  some  observations  upon  a  few  points, 
that  have  occurred*  in  practice,  principally  respecting  the 
construction  of  the  English  Act  for  abolishing  fines  and 
recoveries. 

Until  the  second  volume  was  nearly  printed,  he  was  not 
aware  of  the  inaccuracies  in  the  references  to  cases,  in  the 


ENGLISH   EDITOR  S    PREFACE.  Vli 

margin  of  the  last  edition :  when,  therefore,  such  inaccu- 
racies in  the  first  two  volumes  are  not  mentioned  among 
the  Errata,  the  reader  will  find  the  names  and  references 
accurately  inserted  in  the  General  Index  of  Cases,  Vol. 
VII.  The  references  to  the  cases  in  the  four  succeeding 
volumes  have  been  examined  and  corrected  ;  and,  through 
the  kindness  of  friends,  the  Editor  has  collated  several 
copies  of  the  former  editions. 

Lincoln's  Inn, 
November,  1834. 


PREFACE 

TO   THE  FIRST  AMERICAN  EDITION. 


Though  the  work  of  Mr.  Cruise  has  been  more  than 
forty  years  before  the  public,  it  still  remains  unrivalled,  as 
the  most  comprehensive  and  best  digested  system  of  the 
law  of  Real  Property.  Others  have  been  published  more 
compact  in  form,  and  containing  the  more  recent  decisions ; 
but  their  brevity  in  the  statement  of  the  cases,  though  no 
small  merit  in  a  book  of  reference  in  the  eyes  of  the  practi- 
tioner, renders  them  in  the  same  proportion  less  useful  to  the 
student.  For  this  reason,  principally,  this  work  has  been 
retained  as  a  text-book,  in  preference  to  all  others,  in  the 
Law  School  of  Harvard  University ;  though  the  numerous 
modifications  which  this  branch  of  the  law  has  subsequently 
received  in  England  and  America,  augmented,  in  no  small 
degree,  both  the  labors  of  the  instructer  and  the  perplexi- 
ties of  the  student.  To  obviate  these  difficulties,  the  prep- 
aration of  the  notes  to  this  edition  was  originally  under- 
taken, and  they  are  now  with  diffidence  made  public. 

In  correcting  the  text,  the  Editor  has  endeavored  to 
abridge  those  cases  which  were  transcribed  at  large  from 


X  PREFACE   TO    THE   FIRST   AMERICAN   EDITION. 

books  easily  accessible  to  every  American  lawyer,  retaining 
the  full  reports  of  those  cases  only  which  cannot  conveni- 
ently elsewhere  be  found.  The  titles,  chapters,  and  cases, 
which  are  believed  to  be  of  no  use  to  the  profession  in  this 
country,  have  been  wholly  omitted.  Most  of  the  English 
statutes,  enacted  prior  to  the  revolution,  have  been  re- 
tained as  they  stood  in  the  text ;  including  all  those  which 
were  passed  before  the  settlement  of  the  American  colonies, 
and  are  supposed  to  have  been  brought  over  and  adopted 
by  the  colonists  as  parts  of  the  English  law.  The  later 
statutes,  contained  in  the  body  of  the  work,  have  been 
transferred,  generally  in  an  abbreviated  form,  to  the  notes  ; 
but  the  Editor  has  not  deemed  it  expedient  to  take  notice 
of  any  other  changes  made  by  recent  statutes  in  England. 

It  was  his  original  intention  to  embody  in  the  text  (dis- 
tinguished by  parentheses)  all  the  cases  in  which  the 
common  law  has  been  modified  and  expounded,  in  both 
countries ;  but  this  design,  after  proceeding  in  it  to  some 
extent  in  the  first  volume,  was  abandoned,  and  all  new 
matter  confined  to  the  notes. 

The  most  embarrassing  difficulty  which  the  Editor  has 
had  to  encounter,  has  been  in  regard  to  the  local  laws  of 
the  several  United  States.  Though  he  has  had  access  to 
the  Revised  Codes  of  all  whose  laws  he  has  attempted  to 
state,  which  may  be  supposed  to  contain  the  most  permanent 
of  their  legislation  on  the  subject  of  real  property  ;  yet  as 
to  several  of  them,  especially  the  more  distant  States,  it  has 
not  been  in  his  power  to  obtain  the  very  latest  of  their  stat- 
utes. And  in  all  the  Western  States,  and  in  a  degree  in 
some  of  the  others  also,  such  is  the  unsettled  character  of 
the  population,  that  the  entire  body  of  municipal  law  may 


PREFACE   TO   THE   FIRST   AMERICAN   EDITION.  xi 

be  justly  regarded  as  still  in  a  state  of  experiment.  All, 
therefore,  that  the  Editor  could  do,  was  to  give  the  dates  of 
the  statutes  to  which  he  has  referred,  leaving  to  the  reader 
the  labor  of  further  research.  Information  of  any  errors 
which  may  be  found  in  this  or  any  other  part  of  the  work, 
will  be  thankfully  received  by  the  Editor,  and  corrected  in 
a  future  edition,  should  this  attempt  receive  encouragement 
from  the  profession. 

Boston,  March  5,  1849. 


■r  II.   I,m:i    Cl:.lf/I/I.ll,    I'JLUtT  Ot  '■/IK  TIME  OI'TIIK  S.tXn  I  v  'I'll  Till 


T/i,  ti,/.i,/i,,i  ,///„.,  //,,„/ ,../,   ,/, , /«,//« ,//  ,„ ,,  w,„„,,  ,  „„/«„/„//,  /, .  /.„,  „,  <    \i,iA/ f/i,  „ 

"'■   '"' '»  ""■  "/"  ■■"'■■/  /i   mlnured    Pol IIS  f/t,t<t,, „,/*,,>,    ///.,„/„,,■>   ,,„,/  / 

>./„,„„,    »/>,./,  ,/,,,.„,,  ,„/,„,„/,/,„,  //„    >,„.),.  .„   i-,,,,,.,  ,/,„,,,/„■„.  „fin*/ff *<*.„„ 

.„„„,,./  /,    , ,, , ,     ///,  ,.,/„„  „/„,/, 


ADVERTISEMENT 
TO    THE   FIRST   AMERICAN   EDITION. 


The  additions  made  to  the  text  by  Mr.  White  are  in- 
cluded in  brackets,  [  ]  ;  and  those  of  the  present  Editor  in 
parentheses,  (  ).  Those  portions  of  the  former  text  which 
are  now  transferred  to  the  notes,  are  marked  by  a  (f ),  or 
some  similar  character.  The  notes  of  Mr.  White,  including 
the  very  few  made  by  Mr.  Cruise,  are  marked  in  like  man- 
ner. The  notes  of  the  present  Editor  are  distinguished  by 
the  numerals  1,  2,  3,  &c. ;  and  the  authorities  added  by  him 
to  the  citations  in  support  of  the  text,  are  included  in  paren- 
theses. The  pages  referred  to,  throughout  the  work,  are 
those  of  Mr.  White's  edition. 


VOL.    I. 


ADVERTISEMENT  TO  THE  SECOND  EDITION. 


In  preparing  this  Edition  for  the  press,  the  notes,  which 
Mr.  Greenleaf  had  made  in  anticipation  of  a  new  Edition, 
are  added  to  his  former  notes.  The  Editor  has  given 
references  to  the  decisions  made,  and  to  some  of  the 
statutes  passed,  since  the  publication  of  the  former  Edi- 
tion. What  he  has  added  is  placed  in  the  notes  in 
brackets,  [  ],  either  without  any  reference  to  the  text, 
where  they  form  part  of  other  notes,  or  with  a  reference  to 
the  text  by  the  numerals  1,  2,  3,  &c.  It  will  be  recollected 
that  the  notes  of  the  English  Editor  are  also  included  in 

],  but  the  references  to  the  text  are  by  a  f  or  t,  &c.  For 
the  greater  convenience  of  reference  from  the  Index,  the 
volumes  of  this  Edition  have  been  paged  consecutively  to 
the  end  of  each  volume,  and  the  references  from  the  Index 
are  to  this  paging.  This  will  not  interfere  with  other  refer- 
ences, as  the  star  paging  has  been  preserved.  It  is  hoped 
that  some  of  the  difficulties  of  reference  from  the  Index 
felt  in  the  former  volumes  will  in  this  manner,  and  by 
the  lettering  of  the  binder,  be  avoided. 

Boston,  October,  1856. 


ADVERTISEMENT.1 


The  reader  will  doubtless  observe,  that  in  the  lists  of  "  Books 
of  Reference,"  under  the  respective  titles  in  these  volumes,  the 
Editor  has  not  affected  to  make  a  complete  catalogue  of  authors, 
it  being  his  intention  only  to  direct  the  student  to  a  few  elemen- 
tary treatises  on  the  subject  of  each  title.  Of  course  it  was  not 
within  his  plan  to  include  the  several  abridgments  both  of  Eng- 
lish and  American  law ;  works  not  only  in  every  lawyer's  library, 
but  designed  rather  for  the  use  of  the  practitioner  than  for  the 
student.  To  obviate  any  misconception  which  may  have  arisen, 
he  deems  it  proper  to  state  that  it  was  for  this  reason,  and  not 
for  any  light  estimation  of  their  merits,  that  some  of  these  valu- 
able abridgments  are  not  inserted  in  the  list,  and  that  the  others 
are  so  rarely  referred  to. 

1  The  above  Advertisement  was  prefixed  by  Mr.  Greenleaf  to  the  second  volume  of 
his  edition  of  Cruise. 


XIX 


ANALYSIS   OF   THE   DIGEST. 


f  1 .  Several  Kinds. 

Tenures  by  which  it  is  held. 
[  1.  Corporeal  or  Land. 
Estates  therein. 

1.  Quantity  of  Interest, 
f  1.  Freehold. 


'  1.  Estate  in  Fee  Simple. 

2.  Estate  in  Tail. 

3.  Estate  for  Life. 

4.  Estate  Tail  after  Possibility,  &c. 

5.  Curtesy. 

6.  Dower. 

7.  Jointure. 

2.  Less  than  Freehold. 
(  1.  Estate  for  Years. 
\  2.  Estate  at  Will,  and  at  Sufferance. 

3.  Customary. 
Copyhold. 

4.  Equitable, 
j  1.  Use. 
\  2.  Trust. 

5.  Upon  Condition. 

6.  As  a  Pledge  or  Security. 

(  1.  Estate  by  Statute  Merchant,  &c. 
(  2.  Mortgage. 

2.  Time  of  Enjoyment. 

(  1.  Possession. 
<  2.  Kemainder. 
I  3.  Reversion. 

3.  Number  and  Connection  of  the  Tenants. 


Severalty. 
Joint  Tenancy. 
Coparcenary. 
Common. 


[  2.  Title  thereto 


Incorporeal. 

f  1.  Advowson. 

2.  Tithes. 

|  3.  Common. 

I  4.  Ways. 

|  5.  Offices. 

6.  Dignities. 

I  7.  Franchises. 

[8.  Rents. 


Descent. 
Purchase. 


Escheat. 

Prescription. 

Alienation. 

1.  Deed. 

2.  Matter  of  Record, 
f  1 .  Private  Act. 
J  2.  King's  Grant. 
]  3.  Fine. 
(4.  Recovery. 

3.  Special  Custom. 

4.  Devise. 

The  Chapter  on  Merger  has  been  added  by  the  English  Editor. 


TABLE    OF    THE    TITLES. 


Vol.  I. 

Vol.  III. 

Title  1. 

Estate  in  Fee  Simple. 

Title  21. 

Advowson. 

2. 

Estate  Tail. 

22. 

Tithes. 

3. 

Estate  for  Life. 

23. 

Commons. 

4. 

Estate  Tail  after  Pos- 

24. 

"Ways. 

sibility. 

25. 

Offices. 

5. 

Curtesy. 

26. 

Dignities. 

6. 

Dower. 

27. 

Franchises. 

7. 

Jointure. 

28. 

Rents. 

8. 

Estate  for  Years. 

29. 

Descent. 

9. 

Estate  at  Will,  &c. 

30. 

Escheat. 

10. 

Copyhold. 

31. 

Prescription. 

11. 

Use. 

12. 

Trust. 

Vol.  IV. 

32. 

Deeds. 

Vol.  II. 

Vol.  V. 

13. 
14. 

Estate  on  Condition. 
Estate      by      Statute 

33. 
34. 
35. 

Private  Acts. 
King's  Grants. 
Fines. 

Merchant,  &c. 

36. 

Recoveries. 

15. 
16. 

Mortgage. 
Remainder. 

37. 

Alienation  by  Custom 

17. 

Reversion. 

18. 

Joint  Tenancy. 

Vol.  VI. 

19. 

Coparcenary. 

38. 

Devise. 

20. 

Tenancy  in  Common. 

39. 

Merger. 

Vol.  VII. 
Indexes. 


CONTENTS   OF   THE   FIRST   VOLUME, 


PRELIMINARY  DISSERTATION  ON  TENURES. 


CHAP. 

I. 

Feudal  Law. 

Sect.                                                                                                                       Star  page. 

1.  Sources  of  the  English  Law 

13.  Origin  of  Feuds 

3 

29.   Definition  of  . 

8 

32.  Different  Kinds 

id. 

35.  Investiture     .... 

9 

40.  Oath  of  Fidelity      . 

10 

42.  Homage          .... 

11 

44.  Duties  of  the  Lord  and  Vassal 

id. 

47.  Feudal  Aids 

12 

48.  Estate  of  the  Vassal 

id. 

50.  Was  unalienable     .... 

id. 

52.  Subinfeudation 

13 

54.  Estate  of  the  Lord 

id. 

56.  His  Obligation  on  Eviction 

id. 

59.  Descent  of  Feuds 

14 

67.  Feudum  Talliatum 

15 

69.  Investiture  upon  a  Descent 

id. 

70.  Relief 

.       16 

71.  Escheat          .... 

id. 

72.  Feudal  Forfeitures 

id. 

78.  The  Lord  might  forfeit  his  Seignory 

17 

79.  Feudal  Jurisdiction 

id. 

CHAP.  II. 

.    Ancient  English  Tenures. 

1.  Introduction  of  Feuds     . 
5.  Division  of  Tenures 
7.  Tenure  in  Capite    . 

12.  Statute  of  Quia  Emptores 

13.  Tenure  by  Knight  Service 
17.  Homage 


19 
20 
21 
22 
id. 
23 


XXIV 


CONTENTS    OF   VOL.    I. 


Sect. 

Star  page. 

20.  Fealty 

.       24 

22.  Fruits  of  Knight  Service 

id. 

23.  Aids 

id. 

25.  Reliefs 

.       25 

26.  Primer  Seisin 

id. 

28.  Wardship       . 

.       26 

30-.  Marriage 

.       id. 

32.  Fines  for  Alienation 

.       27 

33.  Escheat           . 

id. 

34.  Tenure  by  Grand  Serjeanty 

id. 

35.  Abolition  of  Military  Tenures 

CFL 

.•     28 

kP.  III. 

Modern  English   Tenures. 

TITLE  I. 

ESTATE    IN    FEE    SIMI 

•LE. 

1.  Of  Real  Property           .... 

.       45 

2.  Corporeal  or  Land 

id. 

3.   (Shares  in  Corporate  Stocks) 

46 

4.  Money  to  be  laid  out  in  Land 

id. 

5.  Heir  Looms  and  Charters 

id. 

7.   (Fixtures)       .... 

id. 

9.  (Trees  and  Crops) 

id. 

10.  Incorporeal     .... 

id. 

11.  Estates  in  Land 

47 

13.  Estates  of  Freehold 

id. 

22.  Of  Seisin        .... 

49 

23.  Where  an  Entry  is  necessary 

id. 

30.  Abatement      .... 

.       51 

32.  Disseisin         .... 

id. 

35.  Abeyance  of  the  Freehold 

52 

38.  Who  may  have  Freehold  Estates 

53 

42.  Estates  in  Fee  Simple     . 

54 

46.  Abeyance  of  the  Fee 

55 

48.  All  other  Estates  merge  in  the  Fee 

56 

51.  Incidents  to  Estates  in  Fee  Simple 

id. 

52t  Alienable 

id. 

54.  Descendible  to  Heirs  General 

51 

55.  Subject  to  Curtesy  and  Dower 

id. 

56.  Liable  to  Debts  ;     . 

id. 

59.  Of  Crown  Debts     . 

60 

62.  How  contracted 

id. 

63.  Bind  the  Lands  when  contracted 

61 

65.  Into  whose  Hands  soever  they  pass 

62 

66.  How  discharged 

id. 

CONTENTS    OF   VOL.   I. 


XXV 


Sect. 


67.  Estates  in  Fee  forfeited  for  Treason,  &c. 

70.  And  for  Disclaimer         .... 

71.  Qualified  Fees 


Star  page. 

.       63 

.       64 

id. 


TITLE   II. 

ESTATE    TAIL. 


CHAP  I. 

Of  the  Origin  and  Nature  of  Estates  Tail. 

1.  Of  Conditional  Fees 

8.  Statute  De  Donis    . 

12.  Description  of  an  Estate  Tail 

13.  Tail  General  and  Special 

14.  Tail  Male  and  Female    . 
17.  Estates  in  Frank  Marriage 
19.  Estates  Tail  are  held  of  the  Donor 

22.  How  created 

23.  What  may  be  entailed     . 

30.  Who  may  be  Tenants  in  Tail 

31.  Incidents  to  Estates  Tail 

32.  Power  to  commit  Waste 

36.  Subject  to  Curtesy  and  Dower 

37.  But  not  to  Merger 

39.  Tenant  in  Tail  entitled  to  the  Deeds 

40.  Is  not  bound  to  pay  off  Incumbrances 


CHAP.   II. 

Power  of  Tenant  in  Tail  over  his  Estate,  and  Modes  of  barring 

Could  only  alien  for  his  own  Life     .... 

His  alienation  not  absolutely  void    .... 

Sometimes  a  Discontinuance    . 

Sometimes  voidable  by  Entry  .... 

When  Alienation  by  Tenant  in  Tail  creates  a  Base  Fee 
Cannot  limit  an  Estate  to  commence  after  his  Death 
Exception       ....... 

The  Issue  not  bound  by  his  Ancestor's  Contracts 
Unless  he  confirms  them 


1. 

4. 

6. 

11. 

13. 
16. 
19. 

20. 
27. 

29.  Nor  subject  to  his  Debts 

30.  Except  Crown  Debts 

35.  Tenants  in  Tail  may  make  Leases 
3G.  Are  subject  to  the  Bankrupt  Laws 
37.  And  to  Forfeiture  for  Treason 

43.  But  not  for  Felony 

44.  Modes  of  barrinjr  Estates  Tail 


66 
69 
70 
id. 
id. 
71 
72 
id. 
id. 
74 
id. 
id. 
75 
id. 
id. 
id. 


77 
78 
id. 
79 
80 
id. 
83 
id. 
84 
85 
id. 
87 
id. 
90 
91 
id. 


VOL.  I. 


XXVI 


CONTENTS   OF   VOL.    I. 


TITLE  III. 

ESTATE    FOR    LIFE. 


CHAP.  I. 

Nature  of  an  Estate  for  Life  and  its  Incidents. 

Sect. 

1.  Description  of         ... 

2.  How  created  .... 
9.  Held  of  the  Grantor 

10.  Not  entailable         .... 

14.  Subject  to  Merger 

16.  Tenants  for  Life  entitled  to  Estovers 

21.  And  to  Emblements 

26.  May  pray  in  Aid     .... 

27.  Not  bound  to  pay  off  Incumbrances' 

28.  But  must  keep  down  the  Interest     . 

29.  When  they  may  keep  the  Title  Deeds 

32.  May  alien  their  Estates  . 
And  when  constructive  Trustees  may  convey  the  whole  Fee 

33.  What  Acts  amount  to  a  Forfeiture 
43.  General  Occupancy         .... 
45.  Estates  pour  aider  vie  vest  in  Executors 
48.  Special  Occupancy  .... 
55.  Ecclesiastical  Persons  are  quasi  Tenants  for 


Life 


Star  page, 

101 

102 

103 

id. 


104 

id. 
105 
106 

id. 

id. 
107 
108 

id. 

id. 
110 
111 

id.. 
114 


CHAP.  II. 

Waste  by   Tenants  for  Life. 

1.  Different  kinds  of  Waste 115 

2.  Felling  Timber id. 

11.  Pulling  down  Houses      ........     117 

14.  Opening  Pits  or  Mines 118 

18.  Changing  the  Course  of  Husbandry  .         .         .         .         .id. 

20.  Destruction  of  Heir  Looms      .         .         .         .         .         .         .119 

21.  Permissive  Waste id. 

25.  Of  the  Action  for  Waste id. 

34.  Waste  restrained  in  Equity     .         .         .         .         .         .         .121 

35.  The  Timber  belongs  to  the  Person  entitled  to  the  Inheritance  id. 
42.  May  be  cut  down  by  Order  of  the  Court  of  Chancery  .  .125 
47.  Of  the  Clause  without  Impeachment  of  Waste  .  .  .  127 
56.  How  far  restrained  in  Equity           .         .         .         .         .         .128 

64.  Is  annexed  to  the  Privity  of  Estate 130 

65.  Partial  Powers  to  do  Waste    .......       id. 

68.  Waste  by  Ecclesiastics    ........       id. 

76.  Of  Accidents  by  Fire 132 


CONTENTS   OF   VOL.    I. 


XXVll 


TITLE  IV. 

ESTATE    TAIL    AFTER    POSSIBILITY    OF    ISSUE    EXTINCT. 


How  it  arises  ..... 

Has  some  Qualities  of  an  Estate  Tail 
But  is  in  Fact  only  an  Estate  for  Life      . 
This  Tenant  has  the  Property  of  the  Timber 
But  is  restrained  from  malicious  Waste    . 


Star  page. 

134 
135 
136 

id. 
137 

id. 


TITLE   V. 

CURTESY. 


CHAP.   I. 

Origin  of  Estates  by  the    Curtesy,  and  circumstances   required  to  their 

Existence. 


1.  Origin  of  Ciu*tesy    .... 

4.  Circumstances  required  . 

5.  I.  Marriage   ..... 

6.  II.  Seisin        ..... 

15.  III.  Issue 

16.  "Who  must  be  born  alive 

17.  In  the  Lifetime  of  the  Wife     . 

19.  And  be  capable  of  inheriting  the  Estate 

24.  IV.  Death  of  the  Wife  . 

25.  Curtesy  in  Gavelkind 

26.  Who  may  be  Tenants  by  the  Curtesy 


139 
140 

id. 

id. 
142 

id. 
143 

id. 
144 

id. 

id. 


CHAP.  II 


Of  what  Things  a  Man  may  he  Tenant  by  the   Curtesy,  and  Nature  of  this 

,        Estate. 


1.  Estates  in  Fee  Simple     . 

4.  Estates  Tail    . 

10.  Estates  in  Coparcenary   . 

11.  Trust  Estates  .    '     . 

13.  Money  to  be  laid  out  in  Land 

15.  Equities  of  Redemption  . 

16.  Incorporeal  Hereditaments 

17.  What  Things  are  not  liable  to 

18.  Estates  not  of  Inheritance 

22.  Estates  in  joint  Tenancy 

23.  Remainders  and  Reversions 
25.  Lands  assigned  for  Dower 


Curtesy 


145 
146 
147 

id. 

id. 
148 

id. 

id. 

id. 
149 

id. 

id. 


XXV111 


CONTENTS    OF   VOL.   I. 


Sect. 

26.  Nature  of  this  Estate 

31.  Forfeitable  for  Alienation 

33.  But  not  for  Adultery 

34.  This  Tenant  is  punishable  for  Waste 


Star  page. 

.     149 

.     150 

id. 


TITLE   VI. 

DOWER. 


19. 

26. 

27. 
28. 


CHAP.   I. 

Origin  and  Nature  of  Dower. 


1.  Origin  of  Dower 

5.  Dower  at  Common  Law 

7.  Dower  by  Custom  . 

11.  Circumstances  required   . 

12.  I.  Marriage    . 

14.  How  proved   . 

15.  Effect  of  Divorces  . 

II.  Seisin  of  the  Husband 

III.  Death  of  the  Husband 
Who  may  be  endowed     . 
Who  are  incapable  of  Dower 


29.  Aliens 


151 
153 
154 

id. 

id. 
155 

id. 
156 
158 

id. 
159 

id. 


CHAP.   II. 

Of  what  Tilings  Dower  may  be,  and  Nature  of  this  Estate 

1.  Estates  in  Fee  Simple     . 

3.  Estates  Tail 

6.  Qualified  or  Base  Fees   . 

7.  Estates  in  Coparcenary  and  Common 

8.  Remainders  and  Reversions  after  Estates  for  Years 

10.  Equities  of  Redemption  of  some  kinds 

11.  Incorporeal  Hereditaments 

12.  Where  a  Widow  has  an  Election     . 

13.  What  Things  are  not  liable  to  Dower 

14.  Estates  in  Joint  Tenancy 

15.  Estates  held  by  Copartners  in  Trade 

17.  Estates  not  of  Inheritance 

18.  Wrongful  Estates    .... 
20.  Lands  assigned  for  Dower 
24.  Uses,  Trusts,  and  Mortgages    . 

26.  Where  Dower  and  Curtesy  cease  with  the  Estate 

27.  Nature  of  this  Estate      . 

29.  The  Dowress  entitled  to  Emblements 

30.  Restrained  from  Alienation     . 


160 
161 
162 

id. 

id. 

id. 
163 

id. 

id. 

id. 

id. 

id. 

id. 
164 

id. 
165 

id. 

id. 

id. 


CONTENTS   OF   VOL.    I. 


XXIX 


Sect.  S,ar  Pag«- 

32.  And  from  "Waste 166 

34.  Not  subject  to  her  Husband's  Incumbrances  _ .         .  .id. 

35.  In  some  cases  Dower  depends  upon  the  Election  of  third  Persons    id. 


CHAP.  III. 

Assignment  of  Dower,  and  Modes  of  recovering  it. 

1.  Necessity  of  an  Assignment     . 

2.  Who  may  assign  Dower 
6.  How  it  is  to  be  assigned 

18.  Remedies  against  an  improper  Assignment 
23.  Effect  of  an  Assignment  of  Dower   . 

26.  Actions  for  recovering     .... 

27.  May  be  obtained  in  Chancery 


168 

id. 

169 

171 

172 

id. 

id. 


CHAP   IV. 

What  will  operate  as  a  Bar  or  Satisfaction  of  Dower 

2.  Attainder  of  the  Husband 
4.  Attainder  of  the  Wife 
4.  Elopement  with  an  Adulterer 
11.  Detinue  of  Charters 

13.  Fine  or  Recovery  . 

14.  Deed      .... 

15.  Bargain  and  Sale  in  London 

16.  Jointure  .... 

18.  An  outstanding  Term 

19.  A  Devise  is  no  Bar  to  Dower 

24.  Unless  so  expressed,  when  the  Widow  has  an  Election 
29.  Sometimes  held  a  Satisfaction  .... 

32.  A  Bequest  of  Personal  Estate  no  Bar  to  Dower 


174 
175 

id. 
176 
177 

id. 

id. 

id. 

id. 
178 
180 
181 
185 


TITLE   VII. 

JOINTURE. 


CHAP  I. 

Of  the   Origin  and  Nature  of  Jointures. 


1.  Origin  of  Jointures 

5.  Definition  of  . 

6.  Circumstances  required. 


187 

189 

id. 


XXX 


CONTENTS   OF  VOL.   I. 


"  7.  I.  Must  commence  on  the  Death  of  the  Husband 
9.  II.   And  be  for  the  Life  of  the  Wife 

12.  III.   Must  be  limited  to  the  Wife  herself 

13.  This  Rule  is  not  admitted  in  Equity 

17.  IV.    It  must  be  in  Satisfaction  of  her  whole  Dower 

18.  V.   And  be  so  expressed  .... 

21.  VI.    And  made  before  Marriage 

22.  Jointures  which  require  the  Acceptance  of  the  Widow 

25.  Cases  where  the  Widow  takes  the  Estate  and  Dower 

26.  Equitable  Jointures  .... 
30.  Who  may  limit  a  Jointure 

34.  Who  may  take  a  Jointure 

35.  An  Infant  is  barred  by  a  Jointure    . 

39.  An  Infant  not  bound  by  uncertain  or  precarious  Jointure 

40.  Nature  of  this  Estate       .... 

41.  Jointress  may  not  commit  Waste 

44.  Contribution  by  Jointress 

45.  Jointress  not  entitled  to  Emblements 

46.  Not  liable  to  Crown  Debts 

47.  A  Rent  Charge  is  usually  given  as  a  Jointure 

48.  Effect  of  the  Eviction  of  a  Jointure 


Star  page. 

189 
190 

id. 

id. 
191 

id. 
192 

id. 
193 
194 
195 

id. 

id. 
200 

id. 

id. 
201 

id. 

id. 

id. 

id. 


CHAP.   II. 

Where  a  Jointress  is  aided  in  Equity. 

1.  A  Jointress  is  deemed  a  Purchaser  .... 

4.  Though  the  Settlement  be  unequal  .... 

7.  Relieved  against  a  Voluntary  Conveyance 

8.  Not  against  a  bond  fide  Purchaser  without  Notice 

9.  Relieved  where  a  Power  to  Jointure  defectively  exercised 

10.  And  against  a  satisfied  Term 

11.  Not  bound  by  Neglect  during  the  Coverture     . 

14.  Nor  to  deliver  up  Title  Deeds 

17.  Sometimes  allowed  Interest  for  Arrears    .... 

18.  Effect  of  a  Covenant  that  the  Lands  are  of  a  certain  Value 


203 
204 
205 

id. 

id. 

id. 

id. 
206 

id. 
207 


CHAP.  III. 

What  will  operate  as  a  Bar  or  Satisfaction  of  a  Jointure. 


1.  Fine  or  Recovery  by  the  Wife  .... 

3.  Not  barred  by  the  Attainder  of  the  Husband     . 

4.  Nor  by  Elopement  of  the  Wife         .... 
7.  A  Devise  is  no  Bar  to  a  Jointure     .... 

13.  Unless  so  expressed,  when  the  Widow  ha,s  an  Election 
15.  A  Devise  sometimes  held  a  Satisfaction   . 


208 
209 

id. 
210 
220 

id. 


CONTENTS    OF   VOL.   I. 


XXXI 


TITLE  VIII. 

ESTATE    FOR    YEARS. 


CHAP.   I. 

Origin  and  Nature  of  Estates  for    Years. 


Sect. 

1.  Estates  less  than  Freehold       .... 

2.  Origin  of  Estates  for  Years       .... 

3.  Description  of  ...... 

9.  Introduction  of  long  Terms      .... 

10.  Tenant  for  Years  has  no  Seisin 

12.  But  must  make  an  Entry  .... 

15.  An  Entry  before  the  Lease  begins  is  a  Disseisin 

18.  Estates  for  Years  may  commence  in  futuro 

19.  And  be  assigned  before  Entry 

22.  May  determine  by  Proviso       .... 

23.  Are  Chattels  real 

24.  And  vest  in  Executors     ..... 
34.  A  Freehold  cannot  be  derived  from  a  Term 


Star  page. 

222 
id. 
223 
224 

id. 
225 

id. 
226 

id. 
227 

id. 

id. 
229 


CHAP.  II. 


Of  the  Incidents  to  Estates  for    Tears. 


1.  Tenants  for  Years  entitled  to  Estovers 

2.  But  cannot  commit  Waste 
12.  Clause  without  Impeachment  of  "Waste 
16.  Accidents  by  Fire    .... 

18.  When  entitled  to  Emblements 

19.  Estates  for  Years  subject  to  Debts   . 

20.  Alienable 

21.  And  may  be  limited  for  Life  with  a  Remainder 
22  But  not  entailed       ..... 

26.  Merged  by  a  Union  with  the  Freehold 

29.  But  not  before  Entry  of  Termor,  it  being  then 

termini       .... 
32.  By  Surrender 
40.  Terms  merge  in  Terms    . 
44.  Equity  relieves  against  Merger 
47.  How  forfeited 


an  interesse 


230 

id. 
233 

id. 

id. 
234 

id. 
235 

id. 
236 

237 
id. 

240 
id. 

2<J] 


xxxu 


CONTENTS    OF   VOL.   I. 


TITLE   IX. 

ESTATE    AT    WILL    AND    AT    SUFFERANCE. 


CHAP.   I. 

Estate  at    Will. 


Sect. 
1. 

3. 

4. 

6. 

7. 

9. 
11. 
12. 
15. 
16. 
23. 
24. 
26. 


Description  of         ..... 

May  arise  by  Implication         .... 

Or  by  Deed  ...... 

Is  at  the  Will  of  both  Parties 

Not  grantable  over  ..... 

Tenant  at  Will  sometimes  entitled  to  Emblements 
Cannot  commit  Waste    ..... 

What  determines  this  Estate 

Six  Months'  Notice  to  quit  necessary 

Tenancies  from  Year  to  Year 

Bind  the  Persons  in  Reversion         .         -. 

And  devolve  to  Executors        .... 

Six  Months'  Notice  to  quit  necessary 


Star  page. 

242 

243 
id. 


TITLE   X. 

COPYHOLD. 

TITLE  XL 

USE. 


CHAP.  I. 
Origin  of  Uses. 

1.  Origin  of  Uses         .... 

5.  Derived  from  the  Fidei  Commissum 
11.  Jurisdiction  of  the  Chancellor  . 
13.  Invention  of  the  Writ  of  Subpoena    . 


id. 

244 

id. 

id. 

id. 
245 

id. 
247 

id. 
248 


CHAP.   II. 

Estate  at  Sufferance. 

1.  Description  of 249 

5.  Tenant  of  this  Estate  to  pay  double  Value  after  Notice     .         .  250 

6.  Who  may  give  Notice      ........  id. 

7.  At  what  Time id. 

9.  Acceptance  of  Single  Rent  no  Bar  to  Recovery         .         .         .  251 

11.  Tenants  giving  Notice  to  quit,  and  holding  over,  to  pay  Double 

Rent            ..........  id. 


330 

331 

333 

id. 


• 


CONTENTS   OF   VOL.    I. 


XXX111 


CHAP.  II. 

Nature  of  a  Use  before  the  Statute  27  Hen.  VIII.  c.  10. 
Sect.  Star  page. 

1.  A  Use  was  a  right  in  Conscience  only 336 

8.  Founded  on  Confidence  in  the  Person 338 

12.  And  Privity  of  Estate      .     ".         .         .         >         .         .         .339 

15.  Who  might  be  Seised  to  Uses 340 

19.  What  might  be  conveyed  to     ......  341 

20.  Rules  by  which  they  were  governed id. 

21.  Could  not  be  raised  without  Consideration         ....  id. 

22.  Not  an  Object  of  Tenure id. 

24.  Not  subject  to  Forfeiture 342 

26.  Not  extendible  or  Assets id. 

27.  Not  subject  to  Curtesy  or  Dower id. 

28.  Uses  were  alienable        .         .......  id. 

32.  Without  words  of  Limitation    .         .         .               •    .         .         .  343 

33.  Might  commence  in  futuro       .......  id. 

34.  Might  be  revoked id. 

35.  And  change  by  Matter  subsequent  ......  id. 

36.  Were  devisable 344 

38.  And  descendible id. 

40.  Inconveniences  of  Uses    ........  id. 

41.  Statutes  made  to  remedy  them         ......  345 

45.  Distinction    between   Uses   and   Trusts  before  the   Statute  27 

Hen.  VIII.  c.  10 346 


CHAP.  III. 

Statute  27  Hen.  VIII.  c.  10,  of  Uses. 

1.  Statement  of  the  Statute 

5.  Circumstances  necessary  to  its  Operation 

6.  I.  A  person  seised  to  a  Use     . 

7.  What  Persons  may  be  seised  to  Uses 

11.  Of  what  Estates      .... 

12.  Estates  Tail  .... 
16.  Estates  for  Life       .... 
19.  What  may  be  conveyed  to  Uses 
22.  II.  A  Cestui  que  Use  in  esse     . 
25.  In  what  Cases  the  Statute  operates 
32.  III.  A  Use  in  esse 

34.  The  Statute  then  transfers  the  Possession 

36.  Savins  of  all  former  Estates    . 


347 
'349 

id. 

id. 
350 

id. 
353 

id. 
354 

id. 
358 

id. 

id. 


CHAP.  IV. 

Modern  Doctrine  of  Uses. 
1.  Construction  of  the  Statute 
3.  Contingent  Uses      ..... 


362 
363 


XXXIV 


CONTENTS   OF   VOL.    I. 


Sec 

Star  page. 

4. 

Uses  arising  on  the  Execution  of  Powers 

a    363 

8. 

Conveyances  derived  from  the  Statute  of  Uses 

.     365 

13. 

Whether  the  Statute  extends  to  Devises 

.     367 

16. 

Resulting  Uses        ....... 

.     370 

32. 

Uses  by  Implication        ...... 

.     374 

35. 

No  Use  results  but  to  the  Owner  of  the  Estate 

id. 

37. 

Nor  against  the  Intent  of  the  Parties 

.     375 

41. 

Which  may  be  proved  by  Parol  Evidence 

id. 

42. 

Nor  which  is  inconsistent  with  the  Estate  limited 

.     376 

47. 

Nor  on  an  Estate  Tail,  for  Life,  or  Years 

id. 

51. 

377 

52. 

What  Use  results  to  a  Tenant  in  Tail 

.     378 

TITLE  XII. 

TRUST. 

CHAP.  I. 

Origin  and  Nature  of  Trust  Estates. 

1.  Origin  of  Trusts      .         .         .         ... 

3.  Description  of         ......         . 

4.  A  Use  limited  upon  a  Use       ..... 
14.  Limitation  to  Trustees  to  pay  over  the  Rents    . 
16.  Trust  for  the  separate  Use  of  a  Woman   . 
21.  Trust  to  sell,  or  to  raise  Money        .... 
25.  Or  for  any  other  Purpose  to  which  a  Seisin  is  necessary 

34.  A  Trust  Estate  limited  after  Payment  of  Debts,  vests  immedi 

ately  ........ 

35.  Term  for  Years  limited  in  Trust       .... 

36.  How  Trusts  may  be  declared  ..... 

40.  Resulting  or  implied  Trusts 

41.  Contract  for  a  Purchase  ...... 

42.  Purchase  in  the  Name  of  a  Stranger 

48.  Purchase  with  Trust  Money 

52.  Conveyance  without  Consideration  .... 

55.  A  Trust  declared  in  Part 

57.  Or  which  cannot  take  Effect 

59.  Exception       ........ 

61.  Where  no  Appointment  is  made       .... 

62.  Renewal  of  a  Lease  by  a  Trustee     .... 
64.  Or  by  Persons  having  only  a  particular  Estate 

66.  Where  there  is  Fraud 

67.  A  Purchase  in  the  Name  of  a  Child  is  an  Advancement 
75.  Exception—  Children  emancipated  .... 
77.  And  also  a  Wife      ..:.... 

80.  No  Trust  between  Lessor  and  Lessee 

81.  Trusts  executed  distinguished  from  Trusts  executory 
83.  Who  may  be  Trustees     ...... 


381 
id. 

id. 

384 
385 
386 
387 

389 

id. 
390 
391 

id. 

id. 
392 
394 

id. 
395 

id. 
396 

id. 
397 

id. 
398 
402 

id. 
403 

id. 

id. 


CONTENTS    OF    VOL.    I. 


XXXV 


CHAP.  II. 


fiulcs  by  tchich  Trust  Estates  of  Freehold  are  governed. 

Sect. 

1.  A  Trust  is  equivalent  to  the  legal  Ownership 

6.  Trusts  are  alienable 

9.  Devisable  and  descendible 

10.  May  be  entailed 

11.  And  also  limited  for  Life 

12.  Subject  to  Curtesy 
16.  When  subject  to  Dower 
22.  Not  to  Free  Bench 
25.  Forfeitable  for  Treason  . 
27.  But  not  for  Felony 
29.  Not  subject  to  Escheat    . 
80.  Liable  to  Crown  Debts    . 
31.  And  to  all  other  Debts     . 
34.  Merge  in  the  Legal  Estate 
3G.  Where  a  Legal  Estate  is  a  Bar  in  Ejectment 
39.  Where  a  Reconveyance  will  be  presumed 


.Star  pa 


405 
406 
407 

id. 

id. 

id. 
409 
410 
411 
412 

id. 

id. 
413 

id. 
414 
415 


CHAP  III. 

Rules  by  which  Trust  Terms  are  governed. 

1.  Terms  in  Gross 417 

6.  Terms  attendant  on  the  Inheritance 418 

9.  How  Terms  become  attendant 419 

22.  When  a  Term  is  in  Gross 423 

27.  A  Term  attendant  may  become  a  Term  in  Gross      .         .         .  425 

29.  Terms  attendant  are  a  Part  of  the  Inheritance           .         .         .  id. 

31.  Are  Real  Assets 426 

32.  Not  forfeited  for  Felony id. 

33.  Trust  Terms  protect  Purchasers  from  Mesne  Incumbrances      .  id. 

39.  And  also  from  Dower 429 

43.  Must  be  assigned  to  a  Trustee  for  the  Purchaser      .         .         .  439 

45.  A  Term  will  not  protect  the  Heir  from  Dower         .         .         .  441 

48.  Nor  the  Assignees  of  a  Bankrupt     ......  442 

49.  Neither  Jointure  nor  Curtesy  barred  by  a  Term       .         .         .  id. 
51.  Where  a  Term  is  a  Bar  in  Ejectment id. 


CHAP.  IV. 

Estate  and  Duty  of  Trustet 

1.  Estate  of  Trustees  .  .... 
6.  Duty  of  Trustees  ..... 
9.  Their  Acts  not  prejudicial  to  the  Trust    . 


447 
448 
449 


XXXVI 


CONTENTS    OP   VOL.    I. 


Sect. 

10.  Exception — Conveyance  without  Notice  . 

15.  Where  Purchasers  are  bound  to  see  Trusts  performed 

22.  Where  they  are  hot  bound       ..... 

30.  Where  the  Receipt  of  the  Trustee  is  sufficient 

37.  Trustees  have  equal  Power,  &c 

39.  Can  derive  no  Benefit  from  the  Trust 

40.  Bound  to  reimburse  the  Cestui  que  Trust 

43.  Have  no  Allowance  for  Trouble       .... 

46.  But  allowed  all  Costs  and  Expenses 

50.  Trustees  seldom  permitted  to  purchase  the  Trust  Estate 

61.  Refusing  to  act  must  release  or  disclaim 

62.  Discharged,  and  others  appointed     .         .         .  ' 


Star  page. 
449 
450 
451 
453 
455 

id. 

id. 
456 
457 

id. 
460 

id. 


DIGEST 


OF    THE 


LAW  OF  REAL  PROPERTY. 


PRELIMINARY   DISSERTATION  ON  TENURES.* 


BOOKS    OF    REFERENCE    UNDER    THIS    TITLE. 

The  principal  English  writers  are  these  :  — 

Sir  Henry  Spelman.  Treatise  on  the  Original  Growth,  Propagation  and 
Condition  of  Feuds  and  Tenures  by  Knight-Service,  in  England.  This  Treatise 
is  printed  in  the  learned  author's  Posthumous  Works.     Lond.  1723.     fol. 

Sir  Thomas  Littleton.     Treatise  of  Tenures.     Book  2. 

John  Dalrymple.     History  of  Feudal  Property  in  Great  Britain.     12mo. 

Sir  Martin  Wright.    Introduction  to  the  Law  of  Tenures.     8vo. 

Sir  William  Blackstone.  Commentaries  on  the  Laws  of  England.  Book 
II.  ch.  4,  5,  6. 

Francis  Stoughton  Sullivan,  LL.  D.  Historical  Treatise  on  the  Feudal 
Law,  and  the  Constitution  and  Laws  of  England,  &c,  in  a  course  of  Lectures 
read  in  the  University  of  Dublin. 

1  This  Preliminary  Dissertation  on  Tenures  was  not  in  the  original  edition  of  tins 
work,  but  was  inserted  in  the  second  edition,  by  the  learned  author,  as  a  necessary 
introduction  to  the  Law  of  Real  Property.  For  the  same  reason  it  is  retained  in 
this  edition  as  equally  necessary  to  the  American  lawyer.  Much  of  this  branch  of 
the  law  has  its  foundation  in  the  feudal  system  ;  without  the  knowledge  of  which,  in  its 
principal  relations,  the  doctrines  of  the  law  of  Real  Property  cannot  be  well  understood. 
The  student,  indeed,  may  treasure  in  his  memory  a  set  of  rules,  at  this  day  apparently 
arbitrary,  but  can  know  little  of  the  principles  on  which  they  were  constructed  ;  and  his 
progress  must  consequently  be  slower,  and  his  conclusions  much  less  firm  and  satis- 
factory, than  though  he  had  traced  up  these  doctrines  to  their  sources,  and  thus  mas- 
tered the  philosophy  of  the  science. 
VOL.  I.  1 


2  Tenures. 

Chief  Baron  Gilbert.  Law  of  Tenures.  An  Outline  of  the  History  and 
Law  of  Feuds  is  contained  in  the  Introduction  and  first  chapter  of  this  valuable 
work. 

Tjionle  Cragii  Jus  Feudale.  Of  this  profound  treatise,  originally  published 
in  the  reign  of  James  /.,  and  dedicated  to  that  Prince,  the  best  edition  is  that  by 
J.Baillie.    Edinb.  1732.     fol. 

Francis  Hargrave  and  Charles  Butler  in  their  learned  notes  to  Coke 
upon  Littleton,  64.  a.  and  191.  a. 

Alexander  Brussius.     Principia  Juris  Feudalis.     Edinb.  1713.     12mo. 

William  Robertson.     History  of  Charles  V.     Introduction. 

Henry  Hallam.     View  of  the  State  of  Europe  during  the  Middle  Ages. 

M.  Guizot.  General  History  of  Civilization  in  Europe,  from  the  fall  of  the 
Roman  Empire  to  the  French  Revolution. 

Gilbert  Stuart.  Historical  Dissertation  concerning  the  Antiquity  of  the 
English  Constitution.  Also,  his  Observations  concerning  the  Public  Law  and 
the  Constitutional  History  of  Scotland.  Also,  his  View  of  the  Progress  of  Soci- 
ety in  Europe. 

George  Spence.  On  the.  Equitable  Jurisdiction  of  the  Court  of  Chancery. 
Vol.  I.  Part  I.  Book  I.  ch.  VII.— X. 

Owen  Flintoff.    On  the  Law  of  Real  Property.  Vol.  II.  Book  I.  ch.  I.  sect.  2. 

The  writers  on  American  titles  are  : — 

Chancellor  Kent,  in  his  Commentaries  on  American  Law,  Vol.  III.  Lect.  51.53. 

David  Hoffman,  in  his  Legal  Outlines,  Lect.  10. 

Mr.  Justice  Story,  on  the  Constitution  of  the  United  States,  Vol.  I.  b.  I. 

James  Sullivan.     History  of  Land  Titles  in  Massachusetts,     p.  1  to  64. 

Other  authorities  are  these  :  — 

Consuetudines  Feudorum.  This  is  the  work  mentioned  by  Mr.  Cruise  in 
this  Preliminary  Dissertation,  ch.  L,  §  28. 

Paulus  Christin.eus.  In  Consuetudines  Feudorum.  This  Commentary 
composes  the  6th  volume  of  his  Decisiones.     Antwerp.  1671.     fol. 

Georgius  Adamus  Struvius.     Syntagma;  Juris  Feudalis.     In  one  vol.,  4to. 

J.  Cujacius.  De  Feudis,  Libri  Quinque.  This  work  is  contained  in  the 
Opera  Prioraof  Cujacius,  Tom.  II.,  fol. ;  and  in  Tom.  X.  of  the  quarto  edition 
recently  published.  The  latter  is  to  be  preferred,  for  a  learned  Dissertation 
which  is  prefixed  to  the  treatise. 

H.  Rosenthal.     Tractatus  et  Synopsis  totius  Juris  Feudalis.     2  torn.  fol. 

J.  L.  Rothius.     PandectJB  Feudales.     In  one  vol.,  4to. 

Udalr,  Zasius.  In  Usus  Feudorum  Epitome.  This  treatise  is  contained  in 
the  Opera  Omnia  of  Zasius,  Tom.  IV.  p.  76 — 107. 

David  Houard.  Anciennes  Loix  des  Francois,  eonservees  dans  les  coutumes 
Angloises  recueillies  par  Littleton.  This  is  a  modern  French  translation  of 
Littleton's  Tenures,  with  a  Commentary  by  M.  Houard,  in  two  volumes  4to. 
The  second  volume  consists  chiefly  of  Preuves  et  Pieces  Justi/icatives,  and  a  Glos- 
sary of  the  obsolete  words  in  Littleton. 

Charles  Dumoulin.  \_M0lino3us.']  In  Consuetudines  Parisienses.  Tit.  I. 
De  Fiefs. 

Henri  Basnage.  Commentaires  sur  la  Coutume  de  Normandie.  Tit.  Des 
Fiefs  et  Droits  Feudeaux.     Art.  98—212. 


CHAP  I. 

FEUDAL   LAW. 

CHAP.  II. 

ANCIENT   ENGLISH    TENURES. 

CHAP.  III. 

MODERN    ENGLISH    TENURES. 


CHAP.  I. 

FEUDAL   LAW. 


Sect.     1.  Sources  of  the  English  Laic. 
13.   Origin  of  Feuds. 
29.  Definition  of. 
32.  Different  Kinds. 
35.  Investiture. 
40.   Oath  of  Fidelity. 
42.  Homage. 

•14.  Duties  of  the  Lord  and  Vas- 
sal. 

47.  Feudal  Aids. 

48.  Estate  of  the  Vassal. 
50.   Was  unalienable. 


Sf.ct. 


52. 
54. 
56. 
59. 
67. 
69. 
70. 
71. 
72. 


79. 


Subinfeudation. 

Estate  of  the  Lord. 

His  Obligation  on  Eviction. 

Descent  of  Feuds. 

Feudum  Talliatum. 

Investiture  upon  a  Descent. 

Relief. 

Escheat. 

Feudal  Forfeiture. 

The  Lord  might  forfeit    his 

Seigniory. 
Feudal  Jurisdiction. 


Section  1.  It  is  generally  agreed  that  the  laws  of  England 
are  derived  from  those  of  the  northern  nations,  who,  migrating 
from  the  forests  of  Germany,  overturned  the  Roman  empire,  and 
established  themselves  in  the  southern  parts  of  Europe. 

*  2.  Both  the  Danes  and  Saxons  were  undoubtedly  *  2 
swarms  from  the  northern  hive  :  it  may  therefore  be  pre- 
sumed that  the  description  which  Tacitus  has  left  us  of  the 
manners  and  customs  of  the  Germans  is  in  every  respect  appli- 
cable to  them.  And  as  the  Saxons  upon  their  establishment  in 
England  exterminated,  rather  than  subdued,  the  ancient  inhab- 


4  Tenures.     Ch.  I.   s.  2—7. 

itants,  they  introduced  their  own  laws,  without  adopting  the 
smallest  portion  of  those  which  prevailed  among  the  ancient 
Britons.1 

3.  The  French  nation  also  derive  their  origin  from  a  tribe  of 
Germans  who  crossed  the  Rhine  under  Clovis  about  the  year 
481,  and  established  themselves  in  the  northern  provinces  of 
France. 

4.  The  different  German  tribes  were  first  governed  by  codes 
of  laws  formed  by  their  respective  chiefs.  One  of  the  most 
ancient  of  these  is  the  Salic  Law,  which  is  generally  supposed 
to  have  been  written  in  the  fifth  century. 

5.  Montesquieu  says,  that  the  tribe  of  the  Bipuarian  Franks, 
having  united  themselves  to  the  Salian  Franks  under  Clovis, 
preserved  their  original  customs  ;  and  that  Theodoric,  king  of 
Austrasia,  caused  them  to  be  reduced  into  writing  ;  and  also 
collected  the  laws  of  those  Bavarians  and  Germans,  who  were 
dependent  upon  his  kingdom.  As  to  the  Saxons,  Charlemagne, 
who  was  their  first  conqueror,  gave  them  a  code  of  laws  which  is 
still  extant,  (a)  2 

6.  While  Clovis  and  his  descendants  governed  France,  that 
country  was  ruled  by  the  Theodosian  code  and  the  laws  of  the 
different  German  tribes  who  had  settled  there.  But  the  Theodo- 
sian code  was  in  course  of  time  abrogated  or  forgotten ;  because 
great  advantages  were  allowed  to  those  who  lived  under  the 
Salic  Law. 

7.  During  the  reigns  of  the  first  French  monarchs,  a  general 
assembly  of  the  nation  took  place  every  year,  in  the  month  of 
March,  afterwards  in  the  month  of  May  ;  where  many  ordinances 
were  made  which  acquired  the   force  of  law,  and  were  called 

Capitularii. 

(a)  Montesq.  Sp.  L.  B.  L.  28,  c.  1. 


1  Perhaps  it  would  be  more  accurate  to  say,  that  the  Saxons  adopted  but  a  small 
portion  of  the  laws  of  the  Britons ;  and  that  the  description  by  Tacitus  is  applicable 
in  very  many  if  not  most  respects  to  the  Dane*  and  Saxons. 

2  The  codes  referred  to  by  Montesquieu  may  be  found  in  Canciani's  collection, 
entitled  Barbarorum  Leges  Antiquce,  &c.  5  vols.  fol.  Venetiis,  1781 — 5.  The  early 
laws  and  customs  of  the  northern  nations  may  be  inferred  with  tolerable  certainty 
from  the  Jus  Commune  Norvegicum,  a  compilation  made  in  the  year  1274,  by  order 
of  the  king,  out  of  the  then  existing  codes  in  the  realm.  It  was  published  at 
Copenhagen,  in  1817,  in  one  vol.  4to. 


Tenures.  Ch.  I.  s.  8—12.  5 

8.  The  introduction  of  feuds  produced  a  variety  of  regulations 
inconsistent  with  the  ancient  codes  of  laws ;  and  France  became 
at  that  time  divided  into  an  infinite  number  of  small  seigniories, 
whose  lords  acknowledged  a  feudal  dependency  only,  not  a 
political  one,  on  the  monarch.  In  consequence  of  this  circum- 
stance, it  became  impossible  that  they  should  all  be  regulated  by 
the  same  laws.  The  codes  of  the  Germans  and  the 
Capitularia,  *  were  superseded  by  these  local  customs  ;  *  3 
each  seigniory  and  province  had  its  own ;  and  there  were 
scarce  two  seigniories  in  the  whole  kingdom  whose  customs 
agreed  in  every  particular,  (a) 

9.  Several  of  these  customs  were  collected  and  published  in 
the  course  of  the  fifteenth  century,  under  the  directions  of  the 
kings  of  France,  and  authenticated  by  the  most  eminent  lawyers 
and  magistrates  of  the  different  provinces;  but  they  had  in 
general  been  put  into  writing'  by  private  individuals  long  before 
that  period. 

10.  Normandy,  like  all  other  provinces  of  France,  was  gov- 
erned by  its  own  customs.  When  it  was  ceded  to  Rollo  in  the 
year  912,  to  be  held  of  the  crown  of  France  by  homage  and 
fealty,  he  caused  an  inquiry  to  be  made  into  its  ancient  usages, 
and  added  his  sanction  to  their  former  authority.  Now,  as  Nor- 
mandy did  not  experience  those  troubles  and  revolutions  which 
disturbed  the  other  parts  of  France,  during  the  tenth  and 
eleventh  centuries,  it  is  generally  supposed  that  the  original 
laws  and  customs  of  the  Franks  were  preserved  with  more 
purity,  and  suffered  less  from  a  mixture  of  the  canon  and  civil 
law  in  Normandy,  than  in  any  other  province  of  France,  (b) 

11.  Upon  the  establishment  of  the  Normans  in  England,  the 
whole  customary  law  of  that  province,  which,  according  to  Bas- 
nage,  one  of  its  best  commentators,  had  been  already  reduced 
into  writing,  was  introduced  here ;  and  as  our  kings  had  great 
possessions  in  France,  and  frequently  visited  that  country  for 
two  centuries  after  the  Conquest,  they  borrowed  from  the  French 
many  of  the  improvements  which  were  made  in  their  jurispru- 
dence, and  established  them  in  England. 

12.  If  these  facts  are  admitted,  it  will  follow  that  the  primeval 
customs  of  the  Germans,  as  described  by  Tacitus ;  the  codes  of 

(a)  Montesq.  Sp.  Laws,  B.  28,  c.  0.  (b)  Ilouard's  Lit.  Pref. 

1* 


6  Tenures.   Ch.  I.  5.  12—15. 

the  different  German  tribes,1  together  with  the  laws  of  the 
Germans  during  the  middle  ages ;  the  Capitularia  of  the  French 
monarchs  of  the  two  first  races ;  and  the  customs  of  the  differ- 
ent provinces  of  France,  particularly  those  of  Normandy,  which 
were  chiefly  founded  on  feudal  principles ;  are  the  real  sources 
from  which  our  ancient  laws  can,  with  any  certainty,  be  de- 
duced. 

13.  In  the  ninth    and   tenth   centuries  there  were  only  two 
tenures,  or  modes  of  holding  lands  upon  the  continent, 

4  *  which  *  were  called  Allodial  and  Feudal.  Allodial  lands 
were  those  whereof  the  owner  had  the  dominium  directum 
et  verum;  the  complete  and  absolute  property,  free  from  all 
services  to  any  particular  lord.2  Allodium  est  proprietas  quce  a 
nullo  recognoscitur.  Qui  tenet  in  Allodium,  id  est,  in  plenam  et 
absolutam  proprietatem,  habet  integrum  et  directum  dominium, 
quale  a principio  de  jure  gentium  fait  distributum  et  distinctum. 
So  that  the  owner  of  an  Allodium  could  dispose  of  it  at  his 
pleasure,  or  transmit  it  as  an  inheritance  to  his  children,  (a) 

14.  A  feud  was  a  tract  of  land  acquired  by  the  voluntary  and 
gratuitous  donation  of  a  superior ;  and  held  on  condition  of 
fidelity  and  certain  services,  which  were  in  general  of  a  military 
nature.  The  tenure  of  the  feudatory  was  of  the  most  precarious 
kind,  depending  entirely  on  the  will  and  pleasure  of  the  person 
who  granted ;  and  this  singular  system  was  derived  from  the 
following  circumstances :  — 

15.  We  learn  from  Caesar  and  Tacitus  that  the  individual 
German  had  no  private  property  in  land;  that  it  was  his  nation 
or  tribe  which  allowed  him  annually  a  portion  of  ground  for  his 
support ;  that  the  ultimate  property,  or  dominium  verum  of  the 
lands,  was  vested  in  the  tribe  ;  and  that  the  portions  dealt  out  to 
individuals  returned  to  the  public,  after  they  had  reaped  the 
fruits  of  them.  Thus  Tacitus  says  :  —  Agri  pro  numero  cultorum 
ab  universis  per    vices  occupantur,  quos  mox  inter  se  secundum 

(a)  Dumoulin,  (In  Consuet.  Parisien.  Tit.  1,  §  67.  Opera,  Tom.  1,  p.  658.) 

1  Sir  H.  Spelman  says : — In  legibus  Henrici  I.  Regis  Anglice,  multa  reperio  e  Lege 
Sailed  deprompta ;  interdum  nomlnatlm,  interdum  verbatim. — Gloss,  voc.  Lex. 

2  Quod  est  rere,  simplicissime,  et  absolutissime  Alaudimn,  nativa  sua  naturalis 
juris  libertate,  originaliter  et  perpetuo  gaudens  ;  nullius  unquam  hominis,  servituti 
aut  recognition!  subditum.  Dumoulin,  [sive  Molinseus]  Consuet.  Paris.  Tit.  I. 
§1.1. 


Tenures.   Ch.l.  5.15—19.  7 

dignationem  partiuntur.     Facilitatem  partiendi  camporum  spatia 
prcestant ;  arva  per  annos  mutant,  et  superest  ager.  (a) 

16.  With  these  ideas  and  this  practice,  the  Germans  made 
conquests.  When  they  had  acquired  a  province  of  the  empire, 
the  land  became  the  property  of  the  victorious  nation;  each 
individual  laid  claim  to  a  share  of  it ;  a  tract  of  ground  was 
accordingly  marked  out  for  the  leader  of  the  expedition ;  and 
to  the  inferior  orders,  portions,  corresponding  to  their  respective 
merits  and  importance,  were  allotted. 

17.  As  the  quantity  of  land  thus  acquired  was  not  sufficient 
to  allow  of  an  annual  change ;  and  as  the  increased  knowledge 
of  agriculture,  and  the  refinement  of  manners  which  then  took 
place,  would  have  rendered  such  an  annual  change  extremely 
inconvenient ;  the  lands  thus  given  became  the  permanent  prop- 
erty of  the  occupiers. 

18.  The  situation  of  a  German  tribe  on  its  first  estab- 
lishment *  in  a  conquered  country  being  extremely  pre-  *  5 
carious,  the  necessity  of -defence  induced  the  chiefs  to 
annex  to  each  grant  or  allotment  of  land  a  condition  of  military 
service.  The  generality  of  writers  have  concluded  from  this 
circumstance,  that  the  allotments  of  land  originally  made  to  the 
individuals  of  a  German  tribe,  on  their  first  establishment  in  a 
conquered  country,  were  mere  beneficia,  or  feuds,  and  have 
derived  from  thence  the  origin  of  the  Feudal  Law.  But  a 
variety  of  arguments  may  be  produced  to  prove  that  the  lands 
thus  granted  were  not  feuds. 

19.  It  is  universally  admitted  that  feuds  were  originally 
voluntary  and  gratuitous  donations,  to  be  held  at  the  mere  will 
of  the  giver,  who  could  resume  them  at  pleasure.1     £Tow,  when 

(«)  Caesar,  De  Bello  Gal.  Lib.  6,  c.  21.    Tacitus,  De  Mor.  Germ.  c.  26. 


i  This  assertion,  though  contained  in  the  Book  of  Feuds,  Mr.  Spence  says  is 
contradicted  by  the  Anglo-Saxon  history  as  far  as  any  authentic  records  extend,  and 
is  not  confirmed  by  the  early  documents  or  history  of  any  other  nation.  He  admits 
that  the  Anglo-Saxon  lords,  as  well  as  those  of  the  continent,  did  in  some  cases 
grant  benefices  revocable  at  pleasure,  or  for  a  term  short  of  the  life  of  the  beneficiary, 
or  only  for  his  life  ;  but  he  asserts  that  nothing  is  found  iu  any  earlier  documents  to 
show  that  they  did  not,  from  the  very  first,  make  grants  of  transmissible  or  hereditary 
benefices  ;  and  he  cites  documentary  instances  of  such  grants,  in  the  times  of  the 
Saxon  princes,  in  England,  Scotland,  and  France.  And  these  writings,  he  observes, 
do  not  countenance  the  notion  of  the  Master  of  the  Rolls,  in  Burgess  v.  Whcatc,  (see 
1  Eden,  R.  192,)  that  the  introduction  of  the  power  of  alienation  was  an  era  in  the 


8  Tenures.   Ch.  I.  s.  19—21. 

the  Germans  first  settled  in  the  southern  parts  of  Europe,  they 
enjoyed  a  very  great  degree  of  liberty  ;  and  upon  the  distribu- 
tion of  the  lands  in  a  conquered  province,  each  individual 
claimed  that  portion  of  them  to  which  his  rank  and  services 
entitled  him,  not  as  a  favor,  but  as  a  right,  being  the  just  reward 
of  his  toils.  Nor  can  it  be  supposed  that  a  people  who  did  not 
conquer  for  their  chiefs  only,  but  also  for  themselves,  should 
submit  to  hold  their  acquisitions  as  the  voluntary  and  gratuitous 
donations  of  their  leader,  and  on  so  precarious  a  tenure  as  his 
will  and  pleasure,  (a) 

20.  The  feudal  system  was  not  generally  established  till  some 
centuries  after  the  settlement  of  the  German  nations  in  Italy 
and  France ;  nor  did  the  circumstance  of  annexing  a  condition 
of  military  service  to  a  grant  of  lands  imply  that  they  were  held 
by  a  feudal  tenure ;  for  the  possessors  of  allodial  property,  who 
were  in  France  called  Liberi  Homines,  were  bound  to  the  per- 
formance of  military  service  ;  and  some  very  respectable  French 
writers,  among  whom  is  Mons.  Bouquet,  derive  the  word  allodium 
from  los,  which  signifies  lot;  and,  from  this  etymology,  conclude 
that  allodial  property  was  that  which  was  acquired  by  lot,  upon 
the  distribution  of  lands  among  the  Franks,  (b) 

21.  The  original  idea  of  feuds  appears  to  have  been  derived 
from  the  following  circumstances.  Tacitus  says,  the  chief  men 
among  the  Germans  endeavored  to  attach  to  their  persons  and 
interests  certain  adherents  whom  they  called  Comites  ;  —  Insignis 
nobilitas,  aut  magna  patrum  merita,  principis  dignationem  etiam 
adolescentibus   adsignant.      Cceteri  robustioribus    ac  jampridem 

probatis  aggregantur ;  nee  rubor  inter  comites  aspici. 
6  *         Gr&dus  *  quinetiam   et  ipse   comitus  habet,  judicio  ejus, 

quern  sectantur ;  magnaque  et  comitum  cemulatio,  quibus 
primus  apud  principem  suum  locus ;  et  principum  cui  plurimi  et 
acerrimi  comites.  Hcec  dignitas,  hce  vires,  magno  semper 
electorum  juvenum  globo  circumdari;  in  pace  decus,  in  bello 
presidium. 

(a)  Eobertson's  Hist,  of  Charles  V.  Vol.  I.  254,  8vo. 

(6)  Bouquet,  Droit  Pub.  Robertson's  Hist,  of  Charles  V.  Vol.  I.  256.  8vo.  Sismondi 
Hist,  des  Francais,  Tom.  III.  219. 


history  of  benefices.  See  Spence  on  the  Equitable  Jurisdiction  of  the  Court  of 
Chancery,  Vol.  I.  p.  44 — iG,  a  deeply  interesting  and  learned  work,  and  one  that  will 
amply  reward  the  diligent  attention  of  the  American  student. 


Tenures.   Ch.  I.  s.  22—25.  9 

22.  This  custom  was  continued  by  the  German  princes  in 
their  new  settlements ;  those  comites  or  attendants  were  called 
Vassi,  Antrustiones,  Leudes,  Homines  in  truste  regis.  The  com- 
position paid  for  the  murder  of  a  person  of  this  description,  the 
only  standard  by  which  we  are  enabled  to  judge  of  the  rank  and 
condition  of  persons  in  the  middle  ages,  was  triple  to  that  paid 
for  the  murder  of  a  common  freeman,  (a) 

23.  While  the  German  tribes  remained  in  their  own  country, 
they  courted  and  preserved  the  favor  of  their  comites  by  presents 
of  arms  and  horses,  and  by  hospitality.  Thus  Tacitus  says  :  — 
Exigunt  (comites)  principis  sui  liber alitate  ilium  bellatorum  equum, 
Warn  cruentam  victricemque  Trameam;  nam  epulce,  et  quamqnam 
incompti,  largi  tamen  apparatus  pro  stipendio  cedunt.  When 
these  princes  settled  in  the  countries  they  had  conquered,  they 
bestowed  a  part  of  the  lands  allotted  to  them,  which  were 
known  by  the  name  of  Fiscus  Regis,  or  Domanium  Regis,  on 
their  adherents,  as  the  reward  of  their  fidelity.  These  donations 
were  originally  called  Benejicia,  because  they  were  gratuitous ; 
in  course  of  time  they  acquired  the  name  of  Feuda.  The  per- 
sons to  whom  this  kind  of  property  was  given  became  thereby 
subject  to  fidelity,  and  the  performance  of  military  services  to 
those  from  whom  they  received  them,  (b) 

24.  Mons.  Bignon,  in  his  notes  on  the  Formulae  of  Marculphus, 
says :  —  Proprietate  et  Fisco  dues  notantur  bonorum  species  :  et 
velut  maxima  rerum  divisio  qnce  eo  seculo  recepta  erat,  omnia 
namque  prcedia  ant  propria  erant,  ant  fiscalia.  Propria  sen 
proprietates  dicebantur  quce  nullius  jnri  obnoxia  erant,  sed  optimo 
maximo  jure  possidebantur  ;  ideoque  ad  hceredes  transibant. 
Fiscalia  vero,  benejicia  sive  fisci  vocabantur,  quce  a  rege  ut  pluri- 
mum,  posteaque  ab  aliis,  ita  concedebantur,  ut  certis  legibus 
servitiisque  obnoxia,  cum  vita  accipientis  finirentur.  (c) 

25.  The  learned  Muratori,  in  his  Antiquitates  Italici  Medii 
JEvi,  has  given  a  Dissertation  on  Allodial  and  Feudal  Tenures. 
He  states  that  feuds  derive  their  origin  from  the  Germans,  and 
were  originally  called  Benejicia.     That  the  ancient  Vassi 

et  *  Vassali  were    persons  who    attached   themselves   to         *7 
kings  and  princes,  in  order  to  acquire  the  privileges  to 

(a)  (Baluzius,  Capit.  Reg.  Francor.  Vol.  II.  898,  926,  928.)     Montesq.  Sp.  L.  B.  30,  c.  19. 

(b)  Tacitus,  De  Mor.  Germ.  c.  14.  Du  Cange,  Gloss,  voc.  Fiscus.  Baluz.  Capit.  Rog. 
Francor.  Vol.  I.  453.  Vol.  II.  875. 

(c)  (Vitl.  Baluz.  Capit.  Keg.  Francor.  Vol.  II.  875.) 


10  Tenures.   Ch.  I.  s.  25—27. 

which  those  who  formed  a  part  of  their  families  were  entitled ; 
and  also  in  the  hope  of  obtaining,  from  the  liberality  of  their 
lords,  benejicia,  that  is,  .the  usufruct  of  a  portion  of  their  royal 
demesnes,  during  the  lives  of  their  lords.  That  whenever  a 
person  of  noble  birth  attached  himself  in  this  manner  to  a  prince, 
he  took  an  oath  of  fidelity  to  him,  and  was  afterwards  called 
Vassus  or  Vassallus ;  which  words  occurred  in  a  Capitu/arium 
of  Louis  the  Pious,  of  the  year  823.1  That  to  constitute  a 
vassus  it  was  not  necessary  he  should  have  a  beneficium.  That 
an  allodium  was  an  inheritance  which  might  be  alienated  at  the 
pleasure  of  the  possessor ;  and  the  words  by  which  it  was 
granted  usually  were, — ut  proprietario  jure  teneat  atque  possideat ; 
seufaciat  inde  quicquid  voluerit,  tarn  ipse  quamque  hccredes 
ipsius.  (a) 

26.  Although  feuds  were  originally  granted  by  kings  and 
princes  only,  yet  in  a  short  time  the  great  lords  to  whom  the 
kings  had  allotted  extensive  tracts  of  land,  partly  from  a  dispo- 
sition to  imitate  their  superiors,  and  partly  for  the  purpose  of 
attaching  persons  to  their  particular  fortunes,  bestowed  a  portion 
of  their  demesnes  as  benefices  or  feuds.  The  greater  part  of 
the  lands  in  Italy  and  France,  were,  however,  held  by  an  allodial 
tenure,  till  the  beginning  of  the  tenth  century,  when  the  feudal 
system  appears  to  have  been  generally  adopted  in  those  countries. 

27.  As  allodial  property  was  much  more  desirable  than  feudal, 
such  a  change  appears  surprising ;  especially  when  we  are 
informed  that  allodial  property  was  frequently  converted  into 
feudal  by  the  voluntary  deed  of  the  possessor.  The  reasons 
which  induced  the  proprietors  of  allodial  lands  to  convert  them 
into  feuds  are  thus  explained  by  the  president  Montesquieu  : — 
Those  who  held  feuds  were  entitled  to  great  privileges  :  the 
composition  or  fine  for  the  commission  of  a  crime  against  a  feuda- 
tory was  much  greater  than  that  for  a  person  who  held  his  lands 
by  an  allodial  tenure.  But  the  chief  motive  for  this  alteration 
was,  to  acquire  the  protection  of  some  powerful  lord,  without 
which,  in  those  times  of  anarchy  and  confusion,  it  was  scarce 
possible  for  an  individual  to  preserve  either  his  liberty  or  his 

(a)  (Muratori,  Antiq.  Ital.  Tom.  I.  p.  345.)     Dissert.  XI. 

1  Vid.  cap.  iv.  ix.  xxiv.  Vid.  etiam  Capit.  Regum  Francor.  Lib.  II.  cap.  iv.  ix. 
\xiv.  in  Leges  Barbaror.  Antique,  Vol.  3,  p.  174,  175,  178. 


Tenures.  Ch.  I.  s.  27  —  30.  11 

property.  These,  and  probably  other  reasons  with  which  we  are 
unacquainted,  produced  an  extension  of  the  feudal  tenure  over 
the  whole  western  world,  (a) 

*  28.  Feuds  upon  their  first  introduction  were  regulated  *  8 
by  unwritten  customs.  In  the  year  1170  the  Emperor 
Frederick  Barbarossa  directed  a  code  of  the  feudal  law  to  be 
compiled,  which  was  accordingly  executed,  and  published  at 
Milan.  It  was  called  Consuetudines  Feudorum ;  and  was 
divided  into  five  books,  of  which  the  first  two,  and  some  frag- 
ments of  the  last  two,  still  exist,  and  are  printed  at  the  end  of 
all  the  modern  editions  of  the  Corpus  Juris  Civilis.  This  work 
is  probably  no  more  than  a  collection  of  the  customs  most  gen- 
erally adhered  to  in  feudal  matters,  and  the  Constitutions  of  the 
Emperors  Lotharius,  Conrad,  and  Frederick,  respecting  feuds,  (b) 

29.  A  feud  is  thus  defined  by  Craig :  —  Estfeudum  beneficium. 
seu  benevola  et  libera  rei  immobilis,  aut  csquipollentis,  concessit), 
cum  utilis  dominii  translatione  ;  retenta  proprietate,  seu  dominio 
directo ;  sub  fide litate,  et  exhibitione  servitiorum  honestorum.1 

30.  It  was  benevola  et  libera  concessio ;  being  supposed  to  have 
been  originally  granted  from  motives  of  mere  benevolence,  and 
not  for  any  sum  of  money,  or  other  valuable  consideration.2 

Dominii  utilis.  —  The  civilians  distinguish  between  the  pro- 
prietas  and  the  dominium  utile.  The  proprietas  is  the  absolute 
property ;  the  dominium  utile  is  only  the  right  of  using  the  thing 
for  a  certain  time. 

Sub  fide  litate.  —  This  was  the  bond  of  connection  between  the 
lord  and  his  vassal ;  and  the  most  essential  circumstance  in  the 
contract,  as  will  be  shown  hereafter. 

Servitiorum.  —  Services  were  also  essential  to  a  feud.  They 
were  generally  of  a  military  nature  ;  but  still  feuds  were  not 
unfrequently  granted  in  consideration  of  other  services. 

(a)  Montesq.  Sp.  L.  B.  31,  c.  8.    Herve\  Vol.  I.  102. 
(&)  Giannone,  (dell'  Istor,  Regn.  Nap.)  Lib.  13,  c.  3,  §  3. 

1  Jus  Feudale,  Lib.  I.  Dieg.  9.  5.  This  definition  is  copied  from  Zasius,  In  TJsus 
Feudorum  Epitome,  Pars  I.  3,  who  derives  it  from  earlier  feudists.  Zasii  Opera, 
Tom.  iv.  p.  77. 

2  Feudum  enim  non  sub  proztextu  pecunioz,  sed  amove  et  honore  Domini  adquirendum  est. 
Consuetudin.  Feudorum,  Lib  I.  tit.  27.  Nothing  but  immovable  property  could  be 
granted  as  a  feud.  Sciendum  est  autem  Feudum,  sive  Beneficium,  nonnisi  in  rebus  soli, 
aut  solo  coharentibus,  aut  in  iis  qui  inter  immobilia  eonnumerantur, — posse  consistere.  Ibid. 
Lib.  II.  tit.  1. 


12  Tenures.  Ch.  I.  s.  31  —  35. 

31.  A  modern  French  writer  observes  that  it  will  appear,  from 
an  attentive  consideration  of  the  origin  and  progress  of  feuds,  to 
have  been  the  intention  of  the  person  creating  the  feud,  to  secure 
a  constant  acknowledgment  of  the  grant  as  long  as  it  subsisted  ; 
in  which  it  differed  from  all  other  grants ;  and  therefore  that  a 
gift  of  a  feud  ought  to  be  denned,  — "  Une  concession  faite  a  la 
charge  d'une  reconnoissance  toujours  subsistante,  qui  doit  se 
manifester  de  la  maniere  convenue."  (a) 

32.  The  first  and  most  general  division  of  feuds  was 
9  *  into  *  proper  and  improper  ones.  Proper  feuds  were  such 
as  were  purely  military,  given  militia  gratid,  without 
price,  to  persons  duly  qualified  for  military  service.  Improper 
feuds  were  those  which  did  not,  in  point  of  acquisition,  services, 
and  the  like,  strictly  conform  to  the  nature  of  a  mere  military 
feud ;  such  as  those  that  were  sold  or  bartered  for  any  equiva- 
lent, or  granted  free  from  all  services,  or  in  consideration  of  any 
certain  return  of  services. 

33.  A  feud  was,  however,  always  considered  as  a  proper  one, 
unless  the  contrary  appeared,  which  could  only  be  proved  by  a 
reference  to  the  original  investiture.  Hence  arose  the  maxim  in 
the  feudal  law,  —  Tenor  investitures  inspiciendus.  But  improper 
feuds  were  distinguished  from  proper  ones  by  those  qualities 
only  in  which  they  varied ;  for  in  all  other  respects  they  were 
considered  as  proper  ones. 

34.  A  feudum  ligium  was  that  for  which  the  vassal  owed 
fealty  to  his  lord  against  all  persons  whatever,  without  any 
exception.  A  feudum  non  ligium  was  that  for  which  the  vassal 
owed  fealty  to  his  immediate  lord  ;  but  with  an  exception  in 
favor  of  some  superior  lord.  A  feudum  antiquum  was  that 
which  had  descended  to  the  vassal  from  his  father,  or  some  more 
remote  ancestor.  A  feudum  novum  was  that  which  was  orig- 
inally acquired  by  the  vassal  himself.  A  feud  granted  by  a  sov- 
ereign prince,  to  hold  immediately  of  himself,  with  a  jurisdiction, 
was  called  feudum  nobile,  and  conferred  nobility  on  the  grantee. 
Where  a  title  of  honor  was  annexed  to  the  lands  so  granted,  it 
was  called  feudum  dignitatis,  (b) 

35.  Feuds  were  originally  granted  by  a  solemn  and  public 
delivery  of  the  very  land  itself  by  the  lord  to  the  vassal,  in  the 

(«)  Herv<5,  Vol.  I.  370-372.  (b)  Craig.  Lib.  I.  tit.  10,  §  11,    Id.  §  12. 


Tenures.   Ch.  I.  s.  35—38.  13 

presence  of  the  convassalli,  or  other  vassals  of  the  lord,  which 
was  called  Investitura ;  and  is  thus  described  by  Corvinus,  — 
Investitura  ab  investiendo  dicta,  quod  per  earn  vassallus  posses- 
sione  quasi  vesle  induatur.  And  this  ceremony  was  so  essen- 
tially necessary  to  the  creation  of  a  feud,  that  it  could  not  be 
constituted  without  it.  Sciendum  est  feudum  sine  investitura 
nullo  modo  constitui  posse,  (a) 

36.  The  convassalli,  or  pares,  were  the  only  persons  who  could 
be  witnesses  to  the  investiture ;  their  presence  was  required  as 
much  for  the  advantage  of  the  lord  as  of  the  tenant.  Of  the 
lord,  that  if  the  tenant  was  a  secret  enemy,  or  otherwise 

*  unqualified,  he  might  be  apprised  of  it,  and  that  they  *10 
might  bear  testimony  of  the  obligations  which  he  con- 
tracted. Of  the  tenant,  that  they  might  testify  the  grant  of  the 
lord,  and  for  what  services  it  was  made.  Lastly,  for  their  own 
advantage,  that  they  might  know  who  was  the  tenant,  and  what 
land  he  held,  (b) 

37.  As  it  was  frequently  inconvenient  for  the  lord  to  go  to 
the  lands  intended  to  be  granted,  the  improper  investiture  was 
introduced,  which  was  a  symbolical  transfer  of  the  lands,  by  the 
delivery  of  a  staff,  a  sword,  or  a  robe ;  which  last  being  the  most 
common  method  among  the  immediate  vassals  of  kings  and 
princes,  gave  rise  to  the  word  investiture.  Investitura  quidem 
proprie  dicitur  possessio  :  abusivo  autem  modo  dicitur  investitura, 
quando  liasta  aut  aliud  corporeum  quidlibet  porrigitur  a  domino, 
se  investituram  facere  dicente.  Quce  si  quidem  ab  illo  fiat,  qui 
alios  habet  vassallos,  saltern  coram  duobus,  ex  illis  solemniter  fieri 
debet ;  alioqui,  licet  alii  intersint  testes,  investitura  minime  valeat. 
Thus  it  appears  that  a  proper  investiture  and  possession  were 
synonymous  terms.  Whenever,  therefore,  investiture  was  dis- 
tinguished from  possession,  it  was  an  improper  one.  (c) 

38.  The  services  which  the  vassal  was  bound  to  perform  were 
declared  by  the  lord  at  the  time  of  the  investiture,  in  the  presence 
of  the  other  vassals.  But  as  a  verbal  declaration  of  the  terms 
on  which  a  feud  was  to  be  held  might  be  forgotten  or  mistaken, 
it  became  usual  for  the  tenant  to  procure  a  writing  from  the  lord, 
containing  the  terms  upon  which  the  donation  was  made,  wit- 
nessed by  the  other  vassals,  which  was  called  a  breve  testatum. 

(a)  Consuet.  Feud.  I.  tit.  25.  (b)  Id.  II.  tit.  32. 

(c)  Consuet.  Feud.  II.  tit.  2.     Craig.  Lib.  II.  tit.  2.  §  4. 
VOL.  I.  2 


14  Tenures.  Ch.  I.  s.  38—43. 

And  where  the  lord  could  not  conveniently  come  to  the  land,  he 
delivered  to  the  vassal  a  breve  testatum,  as  an  improper  investi- 
ture ;  with  a  direction  to  some  person  to  give  him  actual  posses- 
sion, (a) 

39.  A  breve  testatum  being  a  much  better  security  than  a  ver- 
bal declaration,  those  who  acquired  feuds  preferred  the  improper 
investiture,  with  a  subsequent  delivery  of  the  possession,  to  a 
proper  investiture  :  so  that  in  process  of  time  the  feudal  writers 
divided  an  improper  investiture  into  three  parts, — a  breve  testa- 
tum, a  pr&ceptum  seisince,  and  a  possessions  traditio. 

40.  Upon  the  creation  of  a  feud,  a  connection  and  union  arose 
between  the  lord  and  his  vassal,  which  was  considered  by  the 
feudal  writers  as  stronger  than  any  natural  tie  whatever ;  and 

which  the  tenant  was  obliged  to  acknowledge  by  imme- 
11*       diately  *  taking  the  oath  of  fidelity  to  the  lord  in  these 

words :  — Ego  Titius  (vassallus)  juro  super  hcec  sancta 
Dei  Evangelia,  quod  ab  hdc  hord  in  antea  usque  ad  idtimum 
diem  vitce  mece,  ero  fidelis  tibi  Caio  Domino  meo  contra  omnem 
hominem,  excepto  Imperatore,  vel  Rege.  (b) 

41.  The  idea  of  this  oath  appears  to  have  been  taken  from  the 
obligation  which  existed  between  the  German  princes  and  their 
comites.  Thus  Tacitus  says,  —  ilium  defender  e,tueri,  sua.quoque 
fortia  gloria?  ejus  assignare,  prmcipuum  sacramentum  est.  And 
fealty  was  so  essentially  requisite  to  the  nature  of  a  feud, 
whether  a  proper  or  an  improper  one,  that  it  could  not  exist 
without  it ;  for  if  lands  were  given  without  a  reservation  of 
fealty,  the  tenure  was  considered  as  allodial ;  but  the  oath  of 
fealty  might  be  dispensed  with. 

42.  When  feuds  became  hereditary,  another  ceremony  was 
added,  called  homagium  or  hominium ;  which  was  performed  in 
this  manner:  —  The  vassal  being  uncovered  and  ungirt,  knelt 
down  before  his  lord,  and  putting  his  hands  within  those  of  his 
lord,  said,  —  Devenio  homo  vester,  de  tenemento  quod  de  vobis 
teneo,  et  tenere  debeo,  et  fidem  vobis  portabo  contra  omnes  gentes. 
The  lord  then  embraced  the  tenant,  which  completed  the  hom- 
age. 

43.  Fealty  and  homage  have  been  often  confounded  by  the 
feudal  writers,  but  improperly.     For  fealty  was  a  solemn  oath 

(a)  Craig.  Lib.  II.  tit.  2.  §  17.  (6)  Consuet.  Feud.  II.  tit.  7. 


Tenures.    Ch.  I.  s.  43—48.  15 

made   by  the  vassal,  of   fidelity  and   attachment   to    his  lord  ; 
whereas  homage  was  merely  an  acknowledgment  of  tenure,  (a) 

44.  In  consequence  of  the  feudal  connection  several  duties 
arose,  as  well  on  the  part  of  the  lord  as  of  the  vassal.  With  re- 
spect to  those  which  the  lord  owed  to  his  vassal,  it  was  a  maxim 
of  the  feudal  law,  that  though  the  vassal  only  took  the  oath  of 
fidelity,  and  did  homage,  and  the  lord,  on  account  of  his  dignity, 
took  none  ;  yet  was  he  equally  obliged  as  if  he  had  taken  it,  to 
do  and  forbear  every  thing  with  respect  to  the  vassal  which  the 
vassal  was  bound  to  do  and  forbear  towards  the  lord ;  so  that  the 
duties  of  both  were  in  most  respects  reciprocal.  (6) 

45.  As  for  the  duties  which  the  vassal  owed  to  the  lord,  they 
are  thus  described  in  the  Consuetudines  Feudorum, —  Qui  domino 
suo fidelitatem  jurat,  ista  sex  in  memoria  semper  habere  debet; — 
Incolume,  tutum,  hone  stum,  utile,  facile,  possibile.  These  were, 
however,  all  reduced  to  the  two  heads  of  Counsel  and  Aid. 
Under  Counsel  was  included,  not  only  giving  faithful 
advice  to  the  lord,  but  *  also  keeping  his  secrets,  and  *  12 
attending  his  courts,  in  order  to  enable  him  to  distribute 
justice  to  the  rest  of  his  tenants,  (c) 

46.  Aid  might  either  be  in  supporting  the  lord's  reputation 
and  dignity,  or  in  defending  his  property.  By  aid  to  his  person, 
the  vassal  was  not  only  obliged  to  defend  his  lord  against  his 
private  enemies,  but  also  to  assist  him  in  his  wars ;  and  feuds 
were  in  general  originally  granted  on  condition  of  military  ser- 
vice, to  be  done  in  the  vassal's  proper  person,  and  at  his  own 
expense. 

47.  The  Feudal  Law  did  not  originally  oblige  the  tenant  to 
contribute  to  the  lord's  private  necessities  ;  the  first  feudal  aid 
being  purely  military.  But  in  course  of  time  the  lords  claimed 
and  established  a  right  to  several  other  aids.  The  principal  of 
which  were,  1.  To  make  the  lord's  eldest  son  a  knight.  2.  To 
marry  the  lord's  eldest  daughter.  3.  To  ransom  the  lord's  per- 
son, when  taken  prisoner,  (d) 

48.  Having  stated  the  obligations  of  the  lord  and  vassal  to 
each  other,  I  shall  now  proceed  to  inquire  into  the  nature  of  the 
estate  or  interest  which  each  of  them  had  in  the  land.     With 

(a)  (Craig.  Lib.  II.  tit.  12.  §  20.     lb.  Lib.  I.  tit.  11,  §  11.)  (b)  Wright,  Ten.  43,  44. 

(c)  Lib.  II.  tit.  6.  (d)  Du  Cange,  Gloss,  voc.  Auxilium. 


16  Tenures.   Ch.  I.  s.  48—53. 

respect  to  the  estate  of  the  vassal,  we  must  recollect  that  as  the 
original  donations  made  by  the  French  kings  to  their  Jideles  and 
leudes  were  of  a  temporary  nature,  and  as  nothing  more  than  the 
usufruct  was  given  to  them  ;  so  in  the  Feudal  Law  the  propri- 
etas  was  allowed  to  remain  in  the  lord,  and  the  vassal  had  only 
the  ususfructus  or  dominium  utile ;  that  is,  a  right  to  take  and 
enjoy  the  profits  of  the  land,  as  long  as  he  performed  the  services 
due  to  the  lord. 

49.  As  to  the  duration  of  feuds,  they  were  originally  preca- 
rious, and  might  be  resumed  at  the  lord's  pleasure.  They  were 
next  granted  for  one  year,  afterwards  for  life.  In  course  of  time 
it  became  unusual  to  reject  the  heir  of  the  last  tenant,  if  he  was 
able  to  perform  the  services :  and  at  length  feuds  became  heredi- 
tary, and  descended  to  the  posterity  of  the  vassal.1  (a) 

50.  In  the  first  ages  of  the  Feudal  Law,  the  vassal  could  not 
alien  the  feud  without  the  consent  of  the  lord  ;  neither  could  he 
mortgage,  or  otherwise  subject  it  to  the  payment  of  his  debts. 
It  appears  however  from  the  Consuetudines  Feudorum  that  feuds 
were  frequently  aliened :  but  by  a  constitution  of  the  emperor 
Lotharius,  reciting  that  the  alienation  of  feuds  had  proved  ex- 
tremely detrimental  to  the  military  services  which  were 

13  *      due  from  the  *  vassals,  they  were   absolutely  prohibited 
from   alienating  their  feuds  without  the  consent  of  their 
lords ;   which  was  confirmed  by  a  law  of  the  emperor  Fred- 
eric II.  (b) 

51.  The '  consent  of  the  lord  was  seldom  given  without  his 
receiving  a  present ;  from  whence  arose  a  general  practice  of 
paying  the  lord  a  sum  of  money  for  permission  to  alien  a  feud. 

52.  There  was  however  a  mode  of  disposing  of  part  of  a  feud, 
which  does  not  appear  to  have  been  comprehended  in  the  con- 
stitutions of  Lotharius  or  Frederic.  This  was  by  a  grant  from 
the  vassal  of  a  portion  of  his  feud  to  a  stranger,  to  be  held  of 
himself  by  the  same  services  as  those  which  he  owed  to  his 
lord. (c) 

53.  This  practice,  which  was  called  subinfeudation,  became 

(«)  Consuet.  Feud.  I.  tit.  1.  (b)  Lib.  II.  tit.  55.  (c)  Consuet.  Feud.  II.  tit.  34.  s.  2. 

1  This  notion  of  the  original  character  of  feudal  property,  and  of  its  becoming 
hereditary  only  by  degrees,  after  a  long  lapse  of  time,  has  been  controverted  by  Mr. 
Spence,  upon  the  ground  of  documentary  evidence  to  the  contrary ;  as  has  been  stated 
in  a  previous  note  to  §  19. 


Tenures.   Ch.  I.  s.  53—56.  17 

extremely  common  in  France  during  the  eleventh  and  twelfth 
centuries  ;  but  was  prevented  by  an  ordonnance  of  Philip  Au- 
gustus in  1210,  which  directed  that  where  any  estate  was  dis- 
membered from  a  feud,  it  should  be  held  of  the  chief  lord,  (a) 

54.  "With  respect  to  the  estate  or  interest  which  the  lord  had 
in  the  lands,  after  he  had  granted  them  out  as  a  feud,  it  con- 
sisted in  the  proprietas,  together  with  a  feudal  dominium  or 
seigniory,  and  a  right  to  fealty,  and  all  the  other  services  reserved 
upon  the  grant.  And  in  case  of  failure  in  any  of  these,  the  lord 
might  enter  upon  and  take  possession  of  the  feud. 

55.  As  the  feudatory  could  not  alien  the  feud  without  the 
consent  of  the  lord,  so  neither  could  the  lord  alien  or  transfer  his 
seigniory  to  another  without  the  consent  of  his  feudatory.  Ex 
eadem  lege  descendit,  quod  dominus,  sine  voluntate  vassalli,  feu- 
dum  alienare  non  potest.  For  the  obligations  of  the  lord  and 
vassal  being  mutual,  the  vassal  was  as  much  interested  in  the 
personal  qualities  of  his  lord,  as  the  lord  was  in  those  of  his 
vassal,  (b) 

56.  There  was  another  obligation,  on  the  part  of  the  lord,  of 
very  considerable  importance ;  namely,  that  in  case  the  vassal 
was  evicted  out  of  the  feud,  the  lord  was  obliged  to  give  him 
another  feud  of  equal  extent,  or  else  to  pay  him  the  value  of  that 
which  he  had  lost.1  (c) 

(a)  Herv6,  Vol.  I.  101.  (b)  Wright,  Ten.  30.     Consuet.  Feud.  II.  tit.  34.  s.  1. 

(c)  Consuet.  Feud.  II.  tit.  25. 

i  This  doctrine  of  the  feudal  law  is  the  foundation  of  a  wide  diversity  of  opinion 
existing  at  this  day,  in  regard  to  the  proper  rule  of  damages  in  actions  on  covenants 
of  warranty.  In  some  of  the  United  States,  the  rule  is  to  give  the  consideration- 
money  with  interest ;  in  others,  the  value  of  the  land  at  the  time  of  eviction.  In  the 
former  States,  the  Courts  regard  the  modern  covenant  of  warranty  as  a  substitute  for 
the  old  real  covenant,  upon  which,  in  a  writ  of  warrantia  chartoz,  or  upon  voucher,  the 
value  of  the  other  lands  to  be  recovered  was  computed  as  it  existed  at  the  time  when 
the  warranty  was  made  ;  and  accordingly  they  retain  the  same  measure  of  compensa- 
tion for  the  breach  of  the  modern  covenant.  But  in  the  latter  States,  the  Courts  view 
the  covenant  as  in  the  nature  of  a  personal  covenant  of  indemnification,  in  which,  as  in 
all  other  cases,  the  party  is  entitled  to  the  full  value  of  that  which  he  has  lost,  to  be 
computed  as  it  existed  at  the  time  of  the  breach.  The  consideration-money  and  inter- 
est, is  adopted  as  the  measure  of  damages,  in  New  York ;  Staats  v.  Ten  Eyck,  3  Caines, 
K.  Ill ;  Pitcher  v.  Livingston,  4  Johns.  1 ;  Bennett  v.  Jenkins,  13  Johns.  50;  [Baxter 
v.  Ryerss,  13  Barb.  267  ;]  —and  in  Pennsylvania;  Bender  v.  Frombcrger,  4  Dall.  441  ; 
[Bitner  v.  Brough,  11  Penn.  State  R.  (I  Jones,)  127;  and  in  Maryland.  See  Marshall 
o.  Haney,  9  Gill,  251  ;]— and  in  Virginia;  Stout  v.  Jackson,  2  Rand.  132;— and  in 
North  Carolina;  Cox  v.  Strode,  2  Bibb.  272  ;  Phillips  v.  Smith,  1  N.  Car.  Law  Repos. 

2* 


18  Tenures.   Ch.  I.  s.  57—60. 

57.  Sir  Martin  Wright  doubts  whether  the  obligation  of  the 
lord  to  protect  and  defend  his  vassal  made  him  anciently  liable 
on  eviction,  without  any  fraud  or  defect  in  him,  to  make  a  com- 
pensation for  the  loss  of  the  feud ;  inasmuch  as  it  could  hardly 

be  imagined  that  while  feuds  were  precarious,  and  held 
14  *       at  the  *  will  of  the  lord  by  whom  they  were  granted,  and 

while  they  were  generously  given  without  price,  the  lord 
should  be  subject  to  such  a  loss ;  and  was  of  opinion  that  the 
lord's  obligation  to  compensate  the  vassal,  in  case  of  eviction, 
only  prevailed  as  to  improper  feuds,  for  which  a  price  had  been 
paid,  or  an  equivalent  stipulated,  (a) 

58.  Craig  agreed  in  this  respect  with  Sir  Martin  Wright. 
They,  however,  both  acknowledge,  that  none  of  the  ancient  feu- 
dal writers  make  any  such  distinction ;  but  that  all  admit  the 
lord's  obligation  to  compensate  the  vassal  on  eviction  to  have 
been  general,  (b) 

59.  We  have  seen,  that  although  feuds  were  originally  granted 
at  will  only,  yet  in  course  of  time  they  became  descendible  and 
hereditary.  It  will,  therefore,  be  necessary  to  inquire  into  the 
rules  of  descent  that  were  established  by  the  feudal  law,  where 
no  particular  mode  of  descent  was  directed  by  the  original  grant: 
for  in  such  case  the  maxim  was, —  Tenor  investitures  est  inspici- 
endus. 

60.  The  first  rule,  was,  that  the  descendants  of  the  person  to 
whom  the  feud  was  originally  granted,  and  none  others,  should 

(a)  Wright,  Ten.  38.  (ft)  (Craig.  Lib.  II.  tit.  4.  §  1,  2.) 


475  ;  Wilson  v.  Forbes,  2  Dev.  R.  30  ;  —  and  in  South  Carolina;  Henning  v.  Withers, 
2  S.  Car.  Rep.  584;  Ware  v.  Weathnall,  2  McCorcl,  413;— and  in  Ohio;  Backus  v. 
McCoy,  3  Ohio  R.  211,  221 ;  — and  in  Kentucky;  Hanson  v.  Buckner,  4  Dana,  253; 
[see  also  Thompson  v.  Jones,  11  B.  Mon.  365;]—  and  in  Missouri;  Tapley  v.  Le- 
beaume,  1  Miss.  R.  552  ;  Martin  v.  Long,  3  Miss.  R.  391 ;  — and  in  Illinois;  Buck 
master  v.  Grundy,  1  Scam.  310;— [and  in  Wisconsin;  Rich  v.  Johnson,  1  Chand.  19.] 
In  Indiana,  the  question  has  been  raised,  without  being  decided.  Blackwell  v.  Jus- 
tices of  Lawrence  Co.  2  Blackf.  147.  The  value  of  the  land  at  the  time  of  eviction, 
has  been  adopted  as  the  measure  of  damages,  in  Massachusetts  ;  Gore  v.  Brazier,  3  Mass. 
523  ;  Caswell  v.  Wendell,  4  Mass.  108  ;  Bigelow  v.  Jones,  lb.  512  ;  Chapel  v.  Bull, 
17  Mass.  213  ;  [see,  also,  Batchelder  v.  Sturgis,  3  Cush.  201,  205;  Cornell  v.  Jack- 
son, lb.  506,  510;]  —and  in  Maine;  Swett  v.  Patrick,  3  Fairf.  1  ;  —and  in  Connecticut ; 
Sterling  v.  Peet,  14  Conn.  245;  —  and  in  Vermont;  Drury  v.  Strong,  D.  Chipm.  R. 
110;  Park  v.  Bates,  12  Verm.  381 ;— and  in  Louisiana;  Bissell  v.  Erwin,  13  Louis.  R. 
143.  See,  also,  4  Kent,  Comm.  474,  475.  [In  Alabama  the  consideration  paid,  interest 
and  expenses  of  suit  are  allowed.    Griffin  v.  Reynolds,  17  How.  U.  S.  609.] 


Tenures.  Ch.  I.  s.  60—55.  19 

inherit ;  because,  as  the  personal  ability  of  the  first  acquirer  to 
perform  the  military  duties  and  services  reserved  was  the  motive 
of  the  donation,  it  could  only  be  transmitted  by  him  to  his  lineal 
descendants,  (a) 

61.  In  consequence  of  this  rule  the  ascending  line  was,  in  all 
cases,  excluded.  Hence  it  is  laid  down  in  the  Consuetudines 
Feudorum, — Successions  feudi  talis  est  natura,  quod  ascen- 
dentes  non  succedunt.  And  a  modern  feudist  has  said,  —  Jus 
tamen  feudale,  ascendentium  ordine  neglecto,  solos  descendentes 
et  collaterales  admittit.  Quoniam  qui  feudum  accipit,  sibi  et 
liberis  suis,  non  parentibus  prospicit.  Whereas  in  allodial  prop- 
erty the  ascending  line  was  capable  of  inheriting.  (&) 

62.  All  the  sons  succeeded  equally,  as  was  the  case  in  France, 
even  respecting  the  succession  to  the  crown,  during  the  first  and 
part  of  the  second  race.  But  the  frequent  wars  occasioned  by 
these  partitions  caused  a  regulation  that  kingdoms  should  be 
considered  as  impartible  inheritances,  and  descend  to  the  eldest 
son. 

63.  In  imitation  of  the  sovereignty,  the  same  alteration  was 
made  in  the  descent  of  the  great  feuds  ;  for  by  a  constitution  of 
the  Emperor  Frederic,  honorary  feuds  became  indivisible  ; 

and  *  they,  as  also  the  military  feuds,  began  to  descend      *  15 
to  the  eldest  son,  because  he  was  sooner  capable  of  per- 
forming the  military  service  than  any  of  his  brothers,  (c) 

64.  Females  were  originally  excluded  from  inheriting  feuds, 
not  only  on  account  of  their  inability  to  perform  the  military  ser- 
vices, but  also  lest  they  should  carry  the  feud  by  marriage  to 
strangers  or  enemies,  (d) 

65.  The  rule,  that  none  but  the  descendants  of  the  first  feuda- 
tory could  inherit,  was  so  strictly  adhered  to,  that  in  the  case  of  a 
feudum  novum,  the  brother  of  the  first  acquirer  could  not  succeed 
to  his  brother,  because  he  was  not  descended  from  the  person 
who  first  acquired  the  feud.  But  in  the  case  of  a  feudum  anti- 
quum, a  brother,  or  other  collateral  relation,  who  was  descended 
from  the  first  acquirer,  might  inherit,  (e) 

(a)  Craig.  Lib.  T.  tit.  10.  s.  11.     (Lib.  II.  tit.  13.  §  46,  47.     Id.  tit.  15.  §  10.) 

(b)  Lib.  II.  tit.  50.  (Id.  tit.  18.)  Corvinus,  Lib.  II.  tit.  4.  (Craig.  Lib.  II.  tit.  13.  §  46,  47. 
-Monte  Sp.  L.  B.  31.  ch.  34.) 

(c)  (Consuet.  Feud.  Lib.  II.  tit.  55.) 

(d)  Consuet.  Feud.  Lib.  I.  tit.  8.    (Struvius,  Syntag.  Jur.  Feud.  c.  IX.  §  8.) 

(e)  Consuet.  Feud.  Lib.  I.  tit.  1.  s.  2. 


20  Tenures.   Ch.  I.  s.  66—70. 

66.  A  mode  was  afterwards  adopted  of  letting  in  the  collateral 
relations  of  the  first  acquirer  of  a  feud,  by  granting  him  a.  feudum 
novum,  to  be  held  ut  antiquum,  that  is,  with  all  the  qualities  of 
an  ancient  feud,  derived  from  a  remote  ancestor ;  and  then  the 
collateral  relations  were  admitted,  however  distant  from  the  per- 
son who  was  last  possessed  of  the  feud,  (a) 

67.  To  restrain  this  general  right  of  inheritance  in  all  the 
collateral  relations,  a  new  kind  of  feud  was  invented,  called  a 
feudum  talliatum,  which  is  thus  described  by  Du  Cange : — 
Feudum  talliatum  dicitur,  verbis  forensibus,  hcereditas  in  quam- 
dam  certitudinem  limitata ;  seu  feudum  certis  conditionibus  con- 
cessum,  verbi  gratid,  alicui  et  liberis  ex  legitimo  matrimonio 
nascituris.  Unde  si  is  cui  feudum  datum  est  moriatur  absque 
liberis,  feudum  ad  donatorem  redit.  Talliare  enim  est  in  quam- 
dam  certitudinem  ponere,  vel  ad  quoddam  certum  hosreditamentum 
limitare?  (b~) 

68.  It  is  observable  that  the  principles  of  the  feudal  descent 
were  peculiar  to  that  tenure,  and  differed  entirely  from  those  of 
succession  established  by  the  Roman  law  ;  in  which  the  heir 
was  a  person  instituted  by  the  ancestor,  or  appointed  by  the 
law,  to  represent  the  ancestor  in  all  his  civil  rights  and  obliga- 
tions ;  whereas,  in  the  feudal  law,  the  heir  succeeded  not  under 
any  supposed  representation  to  the  ancestor,  but  as  related  to 
him  in  blood,  and  designated,  in  consequence  of  that  relation- 
ship, by  the  terms  of  the  investiture,  to  succeed  to  the  feud. 

69.  When  feuds  became  descendible,  the  lord,  upon  the  death 
of  every  tenant,    claimed   the   right    of  granting  a  new 

16  *  investiture  *  to  the  successor,  without  which  he  could  not 
enter  into  possession  of  the  feud.  This  showed  that  the 
right  of  inheriting  was  originally  derived  from  the  bounty  and 
acquiescence  of  the  lord ;  and  these  investitures  were  evidence 
of  the  tenure,  as  well  as  of  the  services  that  were  due  for  the 
feud. 

70.  It  was  also  customary  for  the  lord  to  demand  some  present 
from  the  heir,  upon  granting  him  investiture,  which  in  course  of 

(a)  Craig.  Lib.  I.  tit.  10.  s:  11.  (13,  14,  15.)  (6)  Craig.  Lib.  I.  tit.  10.  s.  17.     (25.) 


i  Talliare,  dividere,    partiri,  disponere.      Vid.   Carpentier,    Glossarium,   voc.    Tal- 
liare, 2. 


Tenures.   Ch.  I.  s.  70—77.  21 


time  became  part  of  the  profits  of  the  feud.  It  was  called 
Relevium,  and  is  thus  described  by  a  feudal  writer  : — Relevium 
est  prcestatio  hceredum,  qui  cum  veteri  jure  feudali  non  poterant 
succedere  infeudis,  caducam  et  incertam  hcereditatem  relevabmt ; 
solutd  summd  vel  pecunice,  vel  aliarum  rerum,  pro  diversitate 
feudorum.  (a) 

71.  As  feuds  were  originally  granted  on  condition  of  military 
or  other  services,  it  was  deemed  just  that  where  there  was  no 
person  capable  of  performing  those  services,  the  feud  should 
return  to  the  lord.  Therefore,  where  a  vassal  died  without 
heirs,  the  lord  became  entitled,  to  the  feud  by  escheat. 

72.  Feuds  having  been  at  all  times  considered  as  voluntary 
donations,  it  was  very  soon  established  that  every  act  of  the  vas- 
sal which  was  contrary  to  the  connection  that  subsisted  between 
him  and  his  lord,  and  to  the  fidelity  he  owed  him,  or  by  which 
he  disabled  himself  from  performing  his  services,  should  operate 
as  a  forfeiture  of  the  feud. 

73.  If  the  vassal  omitted  to  require  an  investiture  from  the 
heir  of  his  lord,  for  a  year  and  a  day  after  the  death  of  the  lord, 
and  to  take  the  oath  of  fealty  to  him,  he  lost  his  feud.  So  in  the 
case  of  the  vassal's  death,  if  his  heir  did  not  require  investiture 
from  the  lord  within  that  time,  he  forfeited  his  feud,  (b) 

74.  If  the  vassal  refused  to  perform  the  services  which  were 
reserved  upon  the  investiture,  he  forfeited  his  feud.  Non  est 
alia  justior  causa  beneficii  auferendi,  quam  si  id,  propter  quod 
benefcium  datum  fuerit,  hoc  servitium  facere  recusaverit ;  quia 
beneficium  amittit.  (c) 

*  75.  If  the  vassal  aliened  the  feud,  or  did  any  act  by       *  17 
which  its  value  was  considerably  diminished,  he  forfeited 
it.     Si  vassallus  feudum  dissiparet,  aut  insigni  detrimento  dete- 
rius  faceret,  privabitur.  (d) 

76.  If  the  vassal  denied  that  he  held  his  feud  of  the  lord,  by 
saying  that  he  held  it  of  some  other  person,  or  denied  that  the 
land  was  held  by  a  feudal  tenure,  he  forfeited  it.  (e) 

77.  Every  species  of  felony  operated  as  a  forfeiture  of  the 
feud  ;  being  the  highest  breach  of  the  vassal's  oath  of  fealty. 

(«)  Schilt.  Cod.  s.  52.  (6)  Consuet.  Feud.  Lib.  II.  tit.  23,  24. 

(c)  Consuet.  Feud.  Lib.  II.  tit.  24.  §  2. 

(d)  (Consuet.  Feud.  Lib.  I.  tit.  21.     Zasius,  In  Usus  Feud.  Pars  10.  §  54.) 

(e)  Craig,  Lib.  III.  tit.  5.  s.  2. 


22  Tenures.    Ch.  I.  s.  78—81. 

78.  The  feudal  lord  was  equally  bound  to  observe  the  terms 
of  relation  on  his  part ;  and,  therefore,  if  he  neglected  to  pro- 
tect and  defend  his  tenant,  or  did  any  thing  that  was  prejudicial 
to  him,  or  injurious  to  the  feudal  connection,  he  forfeited  his 
seigniory,  (a) 

79.  The  feudal  lord  had  not  only  a  right  to  the  service  of  his 
vassals  in  war,  but  had  also  the  privilege  of  determining  their 
disputes  in  time  of  peace.  Thus  we  read  in  the  Consuetudines 
Feudorum, — Si  inter  duos  vassallos  de  feudo  sit  controversial 
domini  sit  cog-nitio,  et  per  eum  controversia  terminetur.  Si  vero 
inter  dominum  et  vassallum  lis  oriqtur,  per  pares  curice,  a  do-mino 
sub  fdelitatis  debito  conjuratos  terminetur.  (b) 

80.  The  origin  of  the  feudal  jurisdiction  is  said  to  be  derived 
from  the  following  circumstances : — By  the  laws  of  all  the 
northern  nations  every  crime,  not  even  excepting  murder,  was 
punished  by  a  pecuniary  fine  called  fredum.  In%the  infancy  of 
the  northern  governments,  the  chief  occupation  of  a  judge  con- 
sisted in  ascertaining  and  levying  those  fines,  which  formed  a 
considerable  part  of  the  public  revenue.  When  extensive  tracts 
of  land  were  granted  as  feuds,  the  privilege  of  levying  those 
fines  was  always  included  in  the  grant,  with  a  right  to  hold  a 
court  for  the  purpose  of  ascertaining  them  ;  from  whence  fol- 
lowed a  jurisdiction  over  the  vassals,  both  in  civil  and  criminal 
matters,  (c) 

81.  To  all  the  nations  descended  from  the  Germans,  justice 
was  originally  administered  in  their  general  assemblies ;  nor  did 
the  king  or  chieftain  pronounce  sentence  till  he  had  consulted 
those  persons  who  were    of  the  same  rank  with   the  accused, 

without  whose  consent  no  judgment  could  be  given.  In 
18  *      imitation  *  of  this  practice,  every  feudal  lord  had  a  court, 

in  which  he  distributed  justice  to  his  vassals  ;  and  every 
freeman  who  held  lands  of  him  was  bound,  under  pain  of  forfeit- 
ing his  feud,  to  attend  his  court,  there  to  assist  his  lord  in  deter- 
mining all  disputes  arising  between  his  vassals.  And  as  all  the 
tenants  were  of  the  same  rank,  and  held  of  the  same  lord,  they 
were  called  pares  curice.  (d) 

(a)  Consuet.  Feud.  Lib.  II.  tit.  26,  47.  (6)  Lib.  I.  tit.  18.     (Lib.  II.  tit.  55.) 

(c)  Montesq.  Sp.  L.  B.  30.  c.  18.  (20.)    Herv<5,  Vol.  I.  222—252.    Kobertson's  Cha.  V.  Vol.  I. 
67,  365. 

(d)  Herv£,  Vol.  I.  s.  263.    (Craig.  Lib.  II.  tit.  11.  §  18.)    Id.  tit.  2.  $  24.    2  Bl.  Comm.  54. 


Tenures.    Ch.  I.  s.  82.  23 

82.  This  practice  appears  to  have  been  established  so  long 
ago  as  in  the  reign  of  the  emperor  Conrad,  A.  D.  920,  of  whom 
there  exists  the  following  law : — Statuimus,  ut  nullus  miles  epi- 
scoporum,  abbatum,  SfC.  vel  hominum,  qui  beneficium  de  nostris 
publicis  bonis,  aut  de  ecclesiarum  prcediis,  SfC.  tenent,  SfC.  sine 
cerld  et  convictd  culpd,  suum  beneficium  perdat,  nisi  secundum 
consuetudinem  antecessorum  nostrorum,  et  judicium  parium*  suo- 
rum.  (a) 

(a)  (Consuet.  Feud.  Lib.  V.  tit.  1.) 


24 


CHAP.  II. 


ANCIENT   ENGLISH   TENURES. 


Sect. 


1. 

Introduction  of  Feuds. 

Sect.  25. 

Reliefs. 

5. 

Division  of  Tenures. 

26. 

Primer  Seisin. 

7. 

Tenure  in  Capite. 

28. 

Wardships. 

12. 

Statute  of  Quia  Emptores. 

30. 

Marriage. 

13. 

Tenure  by  Knight  Service. 

32. 

Fines  for  Alienation. 

17. 

Homage. 

33. 

Escheat. 

20. 

Fealty. 

34. 

Tenure  by  Grand  Serjeanty 

22. 

Fruits  of  Knight  Service. 

35. 

Abolition  of  Military 

23 

Aids. 

Tenures. 

Section  1.  It  is  now  universally  admitted  that  the  feudal 
system,  with  all  its  fruits  and  services,  as  established  in  Nor- 
mandy, was  first  introduced  into  England  by  William  the  Con- 
queror, in  those  possessions  of  the  Saxon  Thanes  which  were 
granted  by  him  to  his  followers,  immediately  after  the  battle  of 
Hastings  ;  and  that  about  the  twentieth  year  of  his  reign,  the 
feudal  system  was  formally  and  generally  adopted,  (a) 

2.  In  consequence  of  this  event  it  became  a  fundamental 
maxim,  or  rather  fiction  of  English  law,  that  all  the  lands  in  the 
kingdom  were  originally  granted  out  by  the  kings;  and  held 
mediately  or  immediately  of  the  crown,  in  consideration  of 
certain  services  to  be  rendered  by  the  tenant.  The  thing  holden 
was  therefore  called  a  tenement,  the  possessors  thereof,  tenants, 
and  the  manner  of  their  possession,  a  tenure.  And  Lord  Coke 
says  : — «  In  the  law  of  England  we  have  not  properly  allodium, 
that  is,  any  subject's  land  that  is  not  holden."  l  (b) 

(«)  Spelman  on  Feuds,  per  tot.     Wright  Ten.  63.  (b)  1  Inst.  1.  a.    Id.  1. b. 


i  The  foundation  of  European  title  to  the  soil  of  America  was  very  fully  discussed 
by  Marshall,  C.  J.,  in  the  celebrated  case  of  Johnson  v.  Mcintosh,  8  Wheat.  543  ;  in 


Tenures.   Cli.  II.  s.  3.  25 

3.    Although  feuds  were  not  originally  hereditary,1  in    those 
countries  where  the  feudal  law  was  first  established,  yet  we  find 

which  the  Court  held  that  the  titles  of  the  European  nations,  as  between  themselves, 
rested  on  discovery;  subject  to  the  right  of  occupancy  only  in  the  aboriginal  inhabi- 
tants, for  present  use,  subordinate  to  the  ultimate  dominion  of  the  discoverers,  who 
had  the  right  ot  preemption  from  the  aborigines,  and  the  right  to  such  a  degree  of 
sovereignty  as  the  circumstances  of  the  people  would  allow  them  to  exercise.  And  sec 
Martin  v.  Waddell,  16  Pet.  367  ;  Rogers  v.  Jones,  1  Wend.  237:  Gough  v.  Bell,  10 
Law  Rep.  505.  All  the  institutions  in  the  United  States  now  recognize  the  absolute 
title  of  the  crown,  subject  only  to  the  Indian  right  of  occupancy,  and  recognize  the 
absolute  title  of  the  crown  to  extinguish  that  right.  It  is  true  that  Indian  deeds  of  an 
early  date  have  in  some  instances  been  admitted  as  the  sole  foundation  of  a  title  in  fee 
simple;  but  none  in  Massachusetts,  subsequent  to  the  last  prohibitory  statute  of  1731, 
forbidding  all  purchases  from  the  natives  without  license  from  the  legislature.  Similar 
prohibitory  acts  were  passed,  in  that  and  in  some  other  provinces,  at  an  earlier  period. 
It  is  now  the  settled  and  fundamental  doctrine,  that  all  valid  individual  title  to  land 
within  the  United  States,  is  derived  from  the  grant  of  our  own  local  governments,  or  from 
that  of  the  United  States,  or  from  the  crown,  or  the  royal  chartered  provincial  govern- 
ments. See  3  Kent,  Comm.  378.  1  Story  on  the  Constitution,  b.  1.  ch.  1.  Jackson 
v.  Ingraham,  4  Johns.  163.  De  Armas  v.  Mayor,  &c,  of  New  Orleans,  5  Miller, 
Louis.  Rep.  132.  This  great  feuda.l  principle,  that  all  lands  are  held  of  the  sovereign, 
being  thus  acknowledged,  the  remark  of  Lord  Coke,  quoted  in  the  text,  seems  in 
strictness  to  apply  as  justly  to  the  United  States  as  to  England,  we  having  no  lands 
which  are  properly  allodial,  that  is,  which  are  not  holden.  But  this  feudal  principle 
was  never  admitted  here  as  a  feature  of  political  government,  but  only  as  the  source  of 
the  rules  of  holding  and  transmitting  real  property  between  man  and  man.  The 
military  and  oppressive  attributes  of  the  feudal  system,  which  were  formally  abolished 
by  the  Stat.  12  Car.  2.,  had  already  become  virtually  dead  in  England,  before  the 
passage  of  that  act,  and  were  never  supposed  to  have  been  brought  into  this  country 
by  the  first  colonists.  The  doctrine  of  feudal  fealty,  however,  was  retained ;  but  the 
right  to  exact  the  oath  was  applied  only  to  the  sovereign,  and  is  resolved  into  the  oath 
of  allegiance,  which  every  citizen  may  be  required  to  take.  3  Kent,  Comm.  512.  By 
the  original  charters,  under  which  most  of  the  colonies  were  first  settled,  the  lands  were 
granted  by  the  crown  to  the  patentees,  to  hold  in  free  and  common  socage.  Such  were 
the  charters  of  Maine,  Massachusetts,2  Rhode  Island,  Connecticut,  Pennsylvania,  Maryland, 
Virginia,  the  Carolinas,  and  Georgia.  In  some  other  States,  all  tenures  were  turned 
into  free  and  common  socage,  by  express  statute  ;  as,  in  New  York,  by  the  act  of  May 
13,  1691  ;  3  Kent,  Comm.  511 ;  and  in  New  Jersey,  Elmer's  Dig.  p.  82.  To  this  tenure, 
also,  fealty  is  admitted  to  be  incident,  at  least  in  fiction  of  law,  and  for  the  purpose  of 
upholding  other  rights;  and  on  this  the  right  to  distrain  for  rent  is  in  some  States 
recognized  as  grounded.  Cornell  v.  Lamb,  2  Cowen,  R.  652.  656  ;  3  Kent.  Comm. 
462.  But  in  some  other  States,  this  incident  of  tenure  in  socage  has  never  been 
admitted,  the  remedy  for  rent  being  only  by  action  at  law.  Wait's  case,  7  Pick.  105. 
In  others,  it  is  still  a  mooted  question  whether  the  right  of  distress  exists,  without  an 
express  stipulation  to  that  effect,  in  the  lease.     4  Am.  Jur.  233 — 262.     But  this  ques- 

i  But  see,  contra,  Spence  on  Equitable  Jurisdiction,  Vol.  I.  p.  44 — 46.     Ante,  ch.  1. 
§  19.  note. 

2  [For  a  learned  and  able  discussion  of  the  rights  of  riparian  proprietors  in  Massachusetts, 
see  Commonwealth  v.  Alger,  7  Cush.  53.] 
VOL.   I.  3 


26  Tenures.   Ch.  II.  s.  3—5. 

that  feuds  were  from  the  beginning  hereditary,  where  lands  held 
by  an    allodial   tenure    were  voluntarily    converted   into   feuds. 

Thus  Basnage,  in  his  Commentary  on  the  customs  of 
20*       Normandy,  says,  *  that  when  Kollo  became  master  of  that 

province,  he  granted  a  considerable  portion  of  it  to  his 
companions,  and  to  gentlemen  of  Britanny,  as  hereditary  feuds. 
That  he  also  recalled  a  number  of  the  ancient  inhabitants  who 
had  held  their  estates  by  hereditary  right,  and  restored  them  to 
their  possessions  in  as  full  .and  ample  a  manner  as  they  had  held 
them  under  the  kings  of  France,  (a) 

4.  When  William  I.  established  himself  in  England,  he  cer- 
tainly granted  to  his  followers  the  inheritance  of  all  the  estates 
which  he  distributed  among  them,  for  some  of  those  estates  are 
possessed  by  their  descendants  at  this  day.  And  when  he  per- 
suaded the  Anglo-Saxon  proprietors  to  hold  their  lands  by  a 
feudal  tenure,  he  as  certainly  allowed  them  to  retain  the  inheri- 
tance. 

5.  Sir  W.  Blackstone  states  that  there  seem  to  have  subsisted 
among  our  ancestors  four  principal  species  of  lap  tenures,  to 
which  all  others  might  be  reduced ;  the  grand  criteria  of  which 
were  the  natures  of  the  several  services  or  renders  that  were  due 
to  the  lords  from  their  tenants.  The  services,  in  respect  of  their 
quality,  were  either  free  or  base ;  in  respect  of  their  quantity, 

(«)  Tom.  1. 153.  edit.  1778.     (Art.  102.  p.  150.  edit.  1709.) 

tion  has  become  of  little  practical  importance,  the  remedy  by  distress,  in  those  States 
in  which  it  is  used,  being  now  recognized  and  regulated  by  statutes.  It  is  true  that  in 
some  of  the  United  States,  statutes  have  been  enacted,  expressly  declaring  all  their 
lands  allodial.  Sec  Rev.  LL.  Connecticut,  1838,  p.  3S9.  tit.  57.  ch.  I. ;  LL.  New  Jersey, 
Feb.  IS,  1795.  Elmer's  Dig.  p.  82.;  LL.  New  York,  Sess.  10.  ch.  36.  1  Rev.  Stat. 
N.  Y.  p.  71S.  §  3.  1  LL.  N.  York,  p.  71.  ed.  1813,  adopted  into  the  Laws  of  the  Terri- 
tory of  Michigan,  p.  393.  But  in  these  cases,  the  term  is  presumed  to  have  been  used 
iu  its  more  popular  sense,  importing  merely  the  actual  freedom  of  the  lands  from 
feudal  burdens  and  exactions,  except  those  due  to  the  State ;  and  not  as  intended  to 
change  any  of  the  established  rules  of  acquiring  and  transmitting  real  property.  Sec 
3  Kent,  Coram.  509—514.  4  Kent,  Comm.  2—4.  Matthews  v.  Ward,  10  Gill  &  Johns. 
450.  451.  The  doctrines  of  escheat,  and  of  forfeiture  for  waste,  arc  plainly  of  feudal 
origin,  though  recognized  and  regulated  by  statutes.  4  Kent,  Comm.  76 — S4.  2 
Reeve,  Hist.  Eng.  Law,  p.  73.  148.  Si  vassallus  feudum  dissiparct,  aut  insignia  detri- 
mento  deterius  faceret,  privabitur.  Zasius,  In  Usus  Feud.  Pars  10.  §  54.  Tom.  IV.  p. 
99.  Wright,  Ten.  44.  Feudum,  deficiente  heredc,  ad  dominum  conccdentem  rever- 
titur.  Crag.  Jus.  Feud.  Lib.  II.  tit.  15.  §  10.  But  in  some  States  they  have  been  held 
to  take  effect  by  force  of  statutes  only.  Dcsilver's  case,  5  Rawle,  112,  113.  And  see, 
as  to  waste,  2  Bl.  Comm.  72,  73.     2  Inst.  300. 


Tenures.  Ch.  II.  s.  5—7.  27 

and  time  of  executing  them,  were  either  certain  or  uncertain. 
Free  services  were  such  as  were  not  unbecoming  the  character  of 
a  soldier  or  a  freeman  to  perform  ;  as  to  serve  under  the  lord  in 
the  wars,  to  pay  a  sum  of  money,  and  the  like.  Base  services 
were  such  as  were  fit  only  for  peasants,  and  persons  of  servile 
rank  ;  as  to  plough  the  lord's  land,  to  make  his  hedges,  to  carry 
out  his  dung,  or  other  mean  employments.  The  certain  services, 
whether  free  or  base,  were  such  as  were  stinted  in  quantity,  and 
could  not  be  exceeded  on  any  pretence  ;  as  to  pay  a  stated 
annual  rent,  or  to  plough  such  a  field  for  three  days.  The 
uncertain  depended  on  unknown  contingencies  ;  as  to  do  military 
service  in  person,  or  pay  an  assessment  in  lieu  of  it,  when  called 
upon,  which  are  free  services.  Or  to  do  whatever  the  lord  should 
command,  which  is  a  base  or  villein  service,  (a) 

6.  From  the  various  combinations  of  these  services  arose  the 
four  kinds  of  lay  tenure  which  subsisted  in  England  till  the 
middle  of  the  seventeenth  century ;  and  three  of  which  subsist 
to  this  day.  Fust,  where  the  service  was  free,  but  uncertain,  as 
military  service,  that  tenure  was  called  chivalry,  servitium 

*  militare,  or  knight  service.  Secondly,  where  the  service  *  21 
was  not  only  free,  but  also  certain,  as  by  fealty  only,  by 
rent,  and  fealty,  &c,  that  tenure  was  called  liberum  socagium,  or 
free  socage.  These  were  the  only  free  holdings  or  tenements ;  the 
others  were  villeinous  or  servile.  As,  thirdly,  where  the  service 
was  base  in  its  nature,  and  uncertain  as  to  time  and  quantity, 
the  tenure  was  purum  villenagium,  absolute  or  pure  villenage. 
Lastly,  where  the  service  was  base  in  its  nature,  but  reduced  to 
a  certainty,  this  was  still  villenage,  but  distinguished  from  the 
other  by  the  name  of  privileged  villenage,  villenag-ium  privile- 
giatum ;  or  it  might  be  still  called  socage,  from  the  certainty  of 
its  services,  but  degraded  by  their  baseness  into  the  inferior  title 
of  villanum  socagium,  villein  socage,  (b) 

7.  Although  in  the  first  instance  all  the  lands  in  England 
were  held  immediately  of  the  king,  yet  in  consequence  of  the 
practice  of  subinfeudation,  which  prevailed  in  those  times,  the 
king's  chief  tenants  granted  out  a  considerable  part  of  their 
estates  to  inferior  persons,  who  were  called  valvasores,  to  hold  of 
themselves,  by  which  mesne,  or  middle  tenures  were  created ; 

(a)  2  Bl.  Com.  60.  (J)  Idem. 


28  Tenures.   Ch.  II.  s.  7—12. 

from  whence  arose    several   distinctions,  as  to  the  manner  in 
which  lands  were  held. 

8.  Estates  might  be  held  of  the  king,  or  of  a  subject  in  two 
ways,  either  as  of  his  person,  or  as  of  an  honor  or  manor  of 
which  he  was  seised  ;  and  every  holding  of  the  person  was, 
strictly  speaking,  a  tenure  in  capite  :  but  still  that  expression 
was  always  confined  to  a  holding  of  the  king  in  right  of  his 
crown  and  dignity ;  or,  as  it  was  formally  expressed,  ut  de 
corona,  or  ut  de  persona  ;  for  whenever  the  holding  was  of  the 
person  of  a  subject,  it  was  called  tenure  in  gross,  (a) 

9.  Tenure  in  capite  was  in  general  so  inseparable  from  a  hold- 
ing of  the  person  of  the  king,  that  if  lands  were  granted  by 
his  majesty,  without  reserving  any  tenure,  or  absque  aliquo  hide 
reddendo,  or  the  like  ;  there  the  lands,  by  operation  of  law, 
should  be  held  of  the  king  in  capite,  because  that  tenure  was  the 
most  advantageous  to  the  crown,  (b) 

10.  Where  an  honor  or  barony  originally  created  by  the  crown 
returned  to  the  king  by  forfeiture  or  escheat,  the  persons  who 
held  their  lands  of  such  honor  or  barony  became  tenants  to  the 
crown,  and  wTere  said  to  hold  of  the  king  ut  de  honore  de  A.,  SfC. 

This  distinction  of  tenure  was  extremely  important  to 
22  *       those  who  *  held  of  such  honors  or  baronies  ;  for  by  an 

article  of  the  Magna  Charta  of  King  Henry  III.  it  was 
declared  that  persons  holding  of  honors  escheated,  and  in  the 
king's  hands,  should  pay  no  more  relief  nor  perform  more  ser- 
vices to  the  king,  than  they  should  to  the  baron,  if  it  were  in  his 
hands,  (c) 

11.  It  followed  that  where  lands  were  held  of  the  king  as  of  an 
honor,  castle,  or  manor,  and  escheated  to  the  crown,  the  tenure 
was  not  in  capite.  And  where  lands  were  granted  by  the  king 
to  hold  of  him,  as  of  his  manor  of  A.,  this  was  not  a  tenure  in 
capite.  (d) 

12.  In  the  case  of  private  individuals,  any  person  might  for- 
merly, by  a  grant  of  land,  have  created  a  tenure,  as  of  his  person, 
or  as  of  any  honor  or  manor  whereof  he  was  seised.  If  no 
tenure  was  reserved,  the  feoffee  would  hold  of  the  feoffor,  by  the 
same  services  by  which  the  feoffor  held  over.  This  doctrine 
having  been  found  to  be  attended  with  several  inconveniences, 

(a)  1  Tnst.  108.  a.  12  Eep.  135.  Fitz.  N.  B.  (5).  (b)  Lowe's  case,  9  Rep.  122. 

(c)  2  Inst.  64.  (d)  Fitz.  X.  B.  5.  K.     Dyer  44.     1  Inst.  108.  a.  Stat.  1  Ed.  6.  c.  4. 


Tenures.  Ch.  II.  s.  12—15.  29 

was  altered  in  the  reign  of  King  Edward  I.  by  the  statute  of 
Quia  Emptores  Terrarum,1  which  directs  that  upon  all  sales  or 
feoffments  of  lands,  the  feoffee  shall  hold  the  same,  not  of  his 
immediate  feoffor,  but  of  the  chief  lord  of  the  fee,  of  whom  such 
feoffor  himself  held  it.f  These  provisions  not  extending  to  the 
king's  tenants  in  capite,  the  like  law  respecting  them  was  de- 
clared by  the  statutes  of  Prcerogativa  Regis,  17  Edw.  2.  c.  6. 
and  34  Edw.  3.  c.  15.  by  which  last  all  subinfeudations  previous 
to  the  reign  of  Edward  I.  were  confirmed  ;  but  all  subsequent  to 
that  period  were  left  open  to  the  king's  prerogative,  (a) 

13.  The  first  and  most  honorable  kind  of  tenure  was  by 
knight  service,  servitium  militare.  To  make  a  tenure  of  this 
kind  a  determinate  quantity  of  land  was  necessary,  which  was 
called  a  knight's  fee,  feudum  militare,  the  measure  of  which  is 
by  some  ancient  writers,  estimated  at  eight  hundred  acres  of 
land,  and  by  others  at  six  hundred  and  eighty.  But  Lord  Coke 
was  of  opinion,  that  a  knight's  fee  was  to  be  esteemed 

*  according  to  the  quality,  and  not  the  quantity  of  the       *23 
land  ;    and  that  20/.  a  year  was  the  qualification  of  a 
knight,  (b) 

14.  Every  person  holding  by  knight  service  was  obliged  to 
attend  the  lord  to  the  wars,  if  called  upon,  on  horseback,  armed 
as  a  knight,  for  forty  days  in  every  year,  at  his  own  expense. 
This  attendance  was  his  redditus,  or  return  for  the  land  he  held. 
If  he  had  only  half  a  knight's  fee,  he  was  only  bound  to  attend 
for  twenty  days,  and  so  on  in  proportion,  (c) 

15.  The  personal  attendance  in  knight's  service  growing 
troublesome  and  inconvenient,  the  tenants  found  means  of  com- 
pounding for  it;  first  by  sending  others  in  their  stead,  after- 
wards by  making  a  pecuniary  satisfaction  to  their  lords  in  lieu  of 
it.  At  last  this  pecuniary  satisfaction  was  levied  by  assessments, 
at  so  much  for  every  knight's  fee  ;  from  whence  it  acquired  the 
name   of  scutagium,   or   servitum   scuti ;   scutum  being  then  a 

(a)  2  Inst.  501.    18  Ed.  1.  c.  1.     1  Inst.  98.  b.     Vide  tit.  32.  c.  1. 

(b)  1  Inst.  09.  a.  Mad.  Exch.  4to.  Vol.  I.  321.  (c)  Mad.  Id.  053. 


1  This  statute  was  never  recognized  or  held  in  force  in  Pennsylvania.  Ingersoll  v. 
Sargent,  1  Whart.  337. 

t  The  idea  of  this  law  was  probably  taken  from,  the  ordonnapce  of  Philip  Augustus 
which  has  been  mentioned  in  the  preceding  chapter,  §  53. 

3* 


30  Tenures.   Ch.  II.  s.  15—19. 

well  known  name  for  money,  and  in  Norman  French  it  was 
called  escuage.  (a) 

16.  As  escuage  differed  from  knight  service  in  nothing  but  as 
a  compensation  differs  from  actual  service,  it  is  frequently  con- 
founded with  it.  Thus  Littleton  must  be  understood  when  he 
says  that  tenant  by  homage,  fealty,  and  escuage,  was  tenant  by 
knight  service.  (6) 

17.  Tenure  by  knight  service  had  all  the  marks  of  a  strict  and 
regular  feud.  It  was  granted  by  words  of  pure  donation — dedi 
et  concessi :  was  transferred  by  investiture,  or  delivering  corporal 
possession  of  the  land,  and  was  perfected  by  homage  and  fealty. 
Thus  every  person  holding  a  feud  by  this  tenure  was  bound  to 
do  homage  to  his  lord,  for  which  purpose  he  was  to  kneel  down 
before  him  and  say,  "  I  become  your  man  from  this  day  forward, 
of  life  and  limb,  and  of  earthly  worship  ;  and  unto  you  shall  be 
true  and  faithful,  and  bear  you  faith  for  the  tenements  that  I 
claim  to  hold  of  you  ;  saving  the  faith  that  I  owe  unto  our  sov- 
ereign lord  the  king."     And  the  lord  being  seated,  kissed  him.  (c) 

18.  Homage  was  properly  incident  to  knight  service,  because 
it  concerned  service  in  war.  It  must  have  been  done  in  person, 
not  by  attorney ;  and  the  performance  of  it,  where  it  was  due, 
materially  concerned  both  the  lord  and  the  tenant  in  point  of 
interest   and   advantage.      To  the  lord  it  was  of  consequence, 

because  till  he  had  received  homage  of  the  heir,  he  was 
24*  not  *  entitled  to  the  wardship  of  his  person  or  estate. 
To  the  tenant  the  homage  was  equally  important;  for 
anciently  every  kind  of  homage,  when  received,  bound  the  lord 
to  acquittal  and  warranty ;  that  is,  to  keep  the  tenant  free  from 
distress,  entry,  or  other  molestation,  for  services  due  to  the  lord 
paramount;  and  to  defend  his  title  to  the  land  against  all 
strangers,  (d^) 

19.  The  words  homagium  and  dominium  are  directly  opposed 
to  each  other,  as  expressing  the  respective  situations  and  duties 
of  the  lord  and  vassal ;  which,  in  conformity  to  the  principles  of 
the  feudal  law,  were  reciprocal.  Thus  Glanville  says, — mutua 
quidem  debet  esse  dominii  et  homagii  fidelitatis  connexio,  ita  quod 
quantum  homo  debet  domino,  ex  homagio ;  tantum  illi  debet 
dominus,  jtrceler  solam  reverentiam.  (e) 

(«)  Mad.  Exch.  652.  (b)  S.  95.  (0  Lit.  s.  85.     Stat.  17.  Ed.  2. 

((/)  1  Inst.  66.  b.     67.  b.  n.  1.     2  Inst.  10.  (e)  Lib.  9.  c.  4. 


Tenures.   Cli.  II  s.  20—25.  31 

20.  All  tenants  by  knight  service  were  also  subject  to  fealty. 
which  is  thus  described  by  Littleton,  s.  91. — "  And  when  a  free- 
holder doth  fealty,  he  shall  hold  his  right  hand  upon  a  book, 
and  shall  say  thus  : — know  you  this,  my  lord,  that  I  shall  be 
faithful  and  true  unto  you,  and  faith  to  you  shall  bear  for  the 
lands  which  I  claim  to  hold  of  you,  and  that  I  shall  lawfully 
do  to  you  the  customs  and  services  which  I  ought  to  do  at  the 
time  assigned.  So  help  me  God  and  his  saints."  And  he  shall 
kiss  the  book. 

21.  Fealty  and  homage  were  perfectly  distinct  from  each 
other ;  for  though  fealty  was  an  incident  to  homage,  and  ought 
always  to  have  accompanied  it,  yet  fealty  might  be  by  itself. 
being  something  done  when  homage  would  have  been  improper ; 
so  that  homage  was  inseparable  from  fealty,  but  fealty  was  not 
so  from  homage.  (a) 

22.  The  tenure  by  knight  service,  being  the  most  honorable, 
was  also  the  most  favorable  to  the  lord,  for  it  drew  after  it  these 
five  fruits  or  consequences,  as  inseparably  incident  to  it ;  namely, 
aids,  relief  primer  seisin,  wardship,  and  marriage. 

23.  With  respect  to  aids,  they  were  the  same  as  those  estab- 
lished on  the  continent ;  namely,  to  make  the  lord's  eldest  son  a 
knight,  to  marry  the  lord's  eldest  daughter,  and  to  ransom  the 
lord's  person  when  taken  prisoner.  These  aids  were  introduced 
into  England  from  Normandy,  where  they  appear  to  have  been 
established  before  the  conquest.  (b~) 

*  24.  Aids  of  this  kind  were  originally  uncertain  ;  but  *  25 
by  the  statute  of  Westmin.  I.  the  aids  of  inferior  lords 
were  fixed  at  twenty  shillings  for  every  knight's  fee,  for 
making  the  lord's  eldest  son  a  knight,  or  marrying  his  eldest 
daughter.  The  same  was  done  with  regard  to  the  king's  tenants 
in  capite,  by  the  statute  25  Edw.  3.  c.  11.  As  to  the  aid  for  the 
ransom  of  the  lord's  person,  not  being  capable  of  any  certainty, 
it  was  never  ascertained,  (c) 

25.  Upon  the  death  of  every  tenant  the  lord  claimed  a  sum  of 
money  from  his  heir,  as  a  fine  for  taking  up  the  estate  that 
lapsed  by  the  death  of  the  ancestor,  which  was  called  a  relief. 
This  practice  was  also  adopted  from  the  laws  of  Normandy, 


(a)  1  Inst.  68.  a.     Wright.  55.  n.  (b)  (Le  Grand  Coustumier,  c.  35.  fol.  57.  b.) 

(c)  1  Ed.  1.  c.  36.     2  Inst.  231.     13  Rep.  20. 


32  Tenures.   Ch.  II.  s.  25—29. 

where  reliefs  were  reduced  to  a  certainty  at  the  time  when  the 
customs  of  that  province  were  collected,  (a) 

26.  Where  the  king's  tenant  died  seised,  the  crown  was  enti- 
tled to  receive  of  the  heir,  if  he  were  of  full  age,  an  additional 
sum  of  money,  called  primer  seisin.  It  does  not  appear  when 
this  right  was  first  established :  but  in  the  stat.  of  Marlbridge, 
52  Hen.  3.  c.  16.  it  is  thus  mentioned : — De  hceredibus  autem  qui 
de   domino   rege   tenent  in   capite,   sic   observandum   est;    quod 

domihus  primam  inde  habeat  seisinam,  sicut  prius  inde 
26  *       habere  consuevit.     The  *  king's  right  to  primer  seisin  is 

also  declared  in  the  statute  De  Prerogative  Regis.  And 
it  was  settled  that  the  king  should  receive  on  this  account  one 
whole  year's  profit  of  the  lands.  (6) 

27.  Primer  seisin  was  only  incident  to  the  king's  tenant  in 
capite,  not  to  those  who  held  of  inferior  or  mesne  lords.  "  It 
seems  (says  Sir  W.  Blackstone)  to  have  been  little  more  than  an 
additional  relief,  founded  on  this  principle,  that  by  the  ancient 
law  of  feuds,  immediately  upon  the  death  of  a  vassal,  the  lord 
was  entitled  to  enter,  and  take  seisin  or  possession  of  the  land, 
by  way  of  protection  against  intruders,  till  the  heir  appeared  to 
claim  it,  and  receive  investiture  ;  during  which  interval  the  lord 
was  entitled  to  the  profits."  (c) 

28.  These  payments  were  only  due  when  the  heir  was  of  full 
age.  If  the  heir  was  under  the  age  of  twenty-one,  being  a  male, 
or  fourteen,  being  a  female,  the  lord  was  entitled  to  ivardshipfi 
which  consisted  in  having  the  custody  of  the  body  and  lands  of 
the  heir,  without  being  accountable  for  the  profits,  till  the  male 
heir  attained  twenty-one,  and  the  female  sixteen. 

29.  The  doctrine  of  wardships  was  taken  from  the  customs  of 
Normandy,  in  which  it  was  called  garde  noble,  (d) 

Of  the  various  hardships  which  arose  from  the  adoption  of  the 
feudal  law,  wardship  was  the  greatest,  and  of  which  there  was 
most  complaint:  for  the  object  of  some  of  the  first  chapters  of 
Magna  Charla  was,  to  regulate  the  conduct  of  the  lords  in  this 
respect,  and  to  restrain  them  from  wasting  and  destroying  the 
estates  of  their  wards. 

(a)  Grand  Coust.  c.  34.  (fol.  56.  b.)    (&)  2  Inst.  134.    17  Ed.  2.  c.  3.  2  Inst.  9.    (c)  2  Coram.  66. 
(d)  Grand  Coust.  c.  33.  fol.  53.     Basnage,  Vol.  I.  326.     (306.  art.  213.  pref.) 

[t  Writ  of  right  of  ward  abolished  after  1st  June,  1835,  by  Stat.  3  and  4  Will.  4. 
c.  27.  s.  36.] 


Tenures.   Ch.  II.  s.  30—35.  33 

30.  By  the  customs  of  Normandy  female  wards  were  directed 
to  be  married  with  the  advice  and  consent  of  the  lord  and  of 
their  relations.  In  imitation  of  this  practice,  it  appears  to  have 
been  settled  in  England,  soon  after  the  establishment  of  the 
Normans,  that  the  consent  of  the  lord  was  necessary  to  the  mar- 
riage of  his  female  wards,  for  which  the  lords  usually  required  a 
sum  of  money.  In  the  charter  of  King  Henry  I.  that  monarch 
engages  to  waive  that  prerogative  ;  this  being  disregarded,  it  was 
provided  by  the  first  draught  of  the  Magna  Cho.rta  of 
King  *  John,  that  heirs  should  be  married  without  dis-  27  * 
paragement,  by  the  advice  of  their  relations.  But  in  the 
charter  of  King  Henry  III.  the  clause  is  merely  that  heirs  shall 
be  married  without  disparagement,  (a) 

31.  Soon  after,  the  king  and  the  great  lords  established  a  right 
to  consent  to  the  marriage,  not  only  of  their  female,  but  of  their 
male  wards  :  for  as  nothing  but  disparagement  was  restrained, 
they  thought  thernselves  at  liberty  to  make  all  other  advantages 
they  could.  Afterwards  this  right  of  selling  the  ward  in  mar- 
riage, or  else  receiving  the  price  or  sale  of  it,  was  expressly 
declared  by  the  statute  of  Merton.  (b) 

32.  All  lands  held  by  a  feudal  tenure  were  originally  unalien- 
able, without  the  license  of  the  lord ;  from  whence  arose  fines 
for  alienation,  of  which  an  account  will  be  given  hereafter,  (c) 

33.  Where  the  tenant  died  without  heirs,  by  which  there  was 
no  person  to  perform  the  services,  the  land  returned  to  the  lord 
as  an  escheat,  in  conformity  to  the  rules  of  the  feudal  law.  (d) 

34.  There  was  a  species  of  tenure  called  grand  serjeanty, 
which  was  considered  superior  to  knight  service ;  whereby  the 
tenant  was  bound,  instead  of  serving  the  king  generally  in  his 
wars,  to  do  him  some  special  honorary  service  in  person.  Thus 
where  the  king  gave  lands  to  a  man  to  hold  of  him  by  the  ser- 
vice of  being  marshal  of  his  host,  or  marshal  of  England,  or 
high  steward  of  England,  or  the  like,  these  were  grand  serjean- 
ties.  So  if  lands  were  given  to  a  man  to  hold  by  the  service  of 
carrying  the  king's  sword  at  his  coronation,  or  being  his  carver 
or  butler,  these  were  called  services  of  honor,  held  by  grand 
serjeanty.  (e) 

*35.   The    oppressions    arising   from    military   tenures,       *28 
(a)  Grand  Coust.  c.  33.  (fol.  -55.  o.)  (6)  20  Hen.  3.  c.  6.  (c)  Tit.  32.  c.  1. 

(d)  Ante,  c.  l.s.  11.  ie)  l'leta.  Lib.  I.  c.  10.     1  Inst.  10G.  a.     107.  a.     Dyer,  285.  b. 


34  Tenures.   Ch.  II.  s.  35. 

having  been  discontinued  during  the  civil  wars  in  the  reign 
of  King  Charles  I.  and  in  the  time  of  the  Commonwealth, 
were  entirely  removed  at  the  Restoration,  by  the  statute  12 
Cha.  2.  c.  24.  which  enacted  that  the  court  of  wards  and 
liveries,  and  all  wardships,  liveries,  primer  seisins,  and  ousterle- 
mains,  values  and  forfeitures  of  marriages,  by  reason  of  any 
tenure  of  the  king,  or  others,  be  totally  taken  away ;  that  all 
fines  for  alienations,  tenures  by  homage,  knight  service  and 
escuage,  and  also  aids  for  marrying  the  daughter,  or  knighting 
the  son,  and  all  tenures  of  the  king  in  capite,  be  likewise  taken 
away ;  that  all  sorts  of*  tenures  held  of  the  king  or  others,  be 
turned  into  free  and  common  socage,  save  only  tenures  in 
frankalmoigne,  copyholds,  and  the  honorary  services  of  grand 
serjeanty;  and  that  all  tenures  which  should  be  created  by  the 
king,  his  heirs  or  successors  in  future,  should  be  in  free  and 
common  socage. 


35 


CHAP.  III. 

MODERN   ENGLISH   TENURES. 

Sect.     1.  Manors.  Sect.  38.  In  Gavelkind. 


8.  Courts  Baron. 

14.  Inferior  Manors. 

17.  How  Manors  are  destroyed. 

23.  Tenure  in  Socage. 

26.  By  Petit  Serjeanty. 

28.  In  Burr/age. 

30.  In  Ancient  Demesne. 


39.  Incidents  to  these  Tenures. 
48.   Charges   in    Socage  by  stat. 
12  CAa.II. 

52.  Tenure  in  Villenage. 

53.  Copyholds. 

59.  .Free  Copyholds. 

62.   Tenure  in  Frankalmoigne. 


[This  chapter,  as  is  apparent  from  the  titles  of  its  several 
sections,  can  be  of  very  little  use  to  an  American  lawyer,  and  it 
is  therefore  omitted.  We  have  already  seen  1  that  all  the  lands 
in  the  American  colonies  were  held  in  free  and  common 
socage  ;  a  term  importing  tenure  by  any  certain  and  defined 
service,  duty,  or  render,  not  military.2  The  value  of  this  tenure 
consisted,  in  modern  times  at  least,  in  the  certainty  with  which 
the  services  were  defined,  thus  exempting  the  tenant  from  the 
wanton  and  arbitrary  exactions  to  which  other  tenures  were 
liable ;  and  hence  the  care  taken  by  the  early  adventurers  in  the 
settlement  of  this  country,  to  secure  the  explicit  declaration  of 
this  tenure  in  their  charters.  No  oath  of  fealty  seems  ever  to 
have  been  taken  or  required  here  ;  nor  has  any  feudal  solemnity 
been  used,  in  the  conveyance  of  lands,  except-  livery  of  seisin. 
The  only  feudal  fictions,  and  services,  observes  Chancellor  Kent, 
which  can  be  presumed  to  be  retained  in  any  part  of  the 
United  States,  consist  of  the  feudal  principle,  that  the  lands  are 
held  of  some  superior  or  lord,  to  whom  the  obligation  of  fealty, 
and  to  pay  a  determinate  rent  are  due.  But  the  right  to  require 
the   oath    of   feudal   fealty   was    never  practically   applied,  nor 

1  Ante,  ch.  2.  §  2.  note  1.  '-'  Litt.  $  117.  118. 


36  Tenures.    Ch.   III. 

assumed  to  apply  to  any  other  superior  lord  than  the  chief  lord 
of  the  fee,  or,  in  other  words,  to  the  people  of  the  State  ;  and 
then  it  resolved  itself  into  the  oath  of  allegiance,  which  is 
demandable  of  every  citizen,  on  a  proper  occasion.1] 

1  3  Kent.  Coram.  510.  512. 


37 


TITLE  I. 

ESTATE    IN    FEE    SIMPLE. 


BOOKS   OF   REFERENCE   UXDER    THIS    TITLE. 

Littleton's  Tenures,  -with  the  ancient  Commentary  published  by  Mr.  Carey. 

Coke  upon  Littleton. 

Bracton,  Book  I.  II. 

Blackstone's  Commentaries,  Book  II.  ch.  7. 

Richard  Preston.     Elementary  Treatise  on  Estates,  ch.  1,  2,  4,  7,  8. 

Sir  Robert  Chambers.    Treatise  on  Estates  and  Tenures. 

Owen  Flintoff.     On  the  Law  of  Real  Property.    Vol.  II.  Book  I.  ch.  3. 

Kent's  Commentaries.    Lect.  51,  52,  54. 

Story  on  the  Constitution  of  the  United  States.    Book  I. 

Sullivan's  History  of  Land  Titles  in  Massachusetts,  p.  1 — 64. 

Kilty's  Landholder's  Assistant. 

McHenry's  Ejectment  Law  of  Maryland. 


Sect. 


1. 

Of  Real  Property. 

Sect.  48. 

All  other  Estates  merge   in 

2. 

Corporeal  or  Land. 

the  Fee. 

3. 

Shares  in  Corporate  Stocks. 

51. 

Incidents   to  Estates  in  Fee 

4. 

Money   to     be   laid   out    in 

Simple. 

Land. 

52. 

Alienable. 

5. 

Heir  Looms  and  Charters. 

54. 

Descendible  to  Heirs  General. 

7. 

Fixtures. 

55. 

Subject    to    Curtesy   and 

9. 

Trees  and  Crops. 

Dower. 

10. 

Lncorporeal. 

56. 

Liable  to  Debts. 

11. 

Estates  in  Land. 

59. 

Of  Crown  Debts. 

13. 

Estates  of  Freehold. 

62. 

How  Contracted. 

22 

Of  Seisin. 

63. 

Bind  the  Lands  when  con- 

23. 

Where  an  Entry  is  necessary. 

tracted. 

30. 

Abatement. 

65. 

Into  whose  Hands  soever  they 

32. 

Disseisin. 

pass. 

35. 

Abeyance  of  the  Freehold. 

66. 

How  discharged. 

38. 

Who    may    have    Freehold 

67. 

Estates  in  Fee  forfeited  for 

Estates. 

Treason. 

42. 

Estates  in  Fee  Simple. 

70. 

And  for  Disclaimer. 

46. 

Abeyance  of  the  Fee. 

71. 

Qualified  Fees. 

Section  1.  By  the  common  law,  property  is  divided  into  two 
kinds ;  namely,  Real  and  Personal  Property,  which  are  governed 
by  distinct  systems  of  jurisprudence.     Real  property  consists  of 


vol.  i. 


38  Title  I.   Estate  in  Fee  Simple,  s.  1 — 2. 

land,  and  of  all  rights  and  profits  arising  from  and  annexed  to 
land,  that  are  of  a  permanent  and  immovable  nature,  and  is 
usually  comprehended  under  the  words,  lands,  tenements,  and 
hereditaments.'  Land  means  the  whole  surface  of  the  earth  ; 2 
.tenement  is  a  word  of  still  greater  extent,  signifying  every  thing 
that  may  be  holden  by  a  tenure  :  but  hereditament  is  the  largest 
and  most  comprehensive  word,  including  not  only  lands  and 
tenements,  but  whatever  may  be  inherited,  (a) 

2.  Real  property  is  corporeal  or  incorporeal.      Corporeal  prop- 
erty consists  wholly  of  substantial  and  permanent  subjects,  all 

which  may  be  comprehended  under  the  general  denomi- 
46  *      nation  of  *  land ;  which    Lord    Coke  says,  in   its   legal 

signification,  comprehends  any  ground,  soil,  or  earth 
whatsoever  ;  as  meadows,  pastures,  woods,  waters,  marshes, 
furzes,  and  heath.  It  has  also  in  its  legal  signification  an  indefi- 
nite extent,  upwards  as  well  as  downwards ;  for  it  is  a  maxim  of 
law  that  cujus  est  solum,  ejus   est  usque  ad  coelum?     Therefore 

(«)  1  Inst.  6.  a.    (Sackct  v.  Wheaton,  17  Pick.  105.) 


1  Real  estate,  as  described  by  Lord  Coke,  is  that  which  "  concerns,  or  is  annexed 
to,  or  exercisable  within  lands."  Co.  Lit.  19,  20;  2  Ves.  663,  664.  The  words 
"  land  "  and  "  real  estate,'"  have  been  defined  by  legislative  acts,  in  several  of  the  United 
States  and  the  meaning  extended  to  include  lands,  tenements,  and  hereditaments,  and  all 
rights  thereto  and  interests  therein,  wherever  a  more  restricted  meaning  is  not  mani- 
festly intended.  See  Revised  Stat.  A/ass.  ch.  2,  §  6,  art.  10;  Rev.  Stat.  Maine,  ch.  1, 
§  3,  X. ;  Rev.  Stat.  New  Hamp.  ch.  1,  §  17 ;  Rev.  Stat.  Mich.  Part  1,  tit.  1,  ch.  1,  §  3, 
art.  9.  In  other  States,  the  term  "  real  estate  "  is  simply  declared  coextensive  with- 
"  lands,  tenements,  and  hereditaments:'  Rev.  Stat.  Ind.  ch.  28,  §  228 ;  Rev.  Stat.  Arkansas, 
ch.  31,  §  7  ;  and  see  Rev.  Stat.  A7.  York,  1828,  Vol.  I.  p.  750,  §  10 ;  and  some  extend 
it  expressly  to  chattels  real.  Rev.  Stat.  Missouri,  ch.  32,  §  49.  Such  has  been 
declared  the  meaning  so  far  as  relates  to  the  Registry  Act  of  New  York,  except  as  to 
leases  for  a  term  not  exceeding  three  years.  Rev.  Stat.  N.  York,  1828,  Vol.  I.  p.  762, 
vS  36.  See  also  Rev.  Stat.  N.  York,  1846,  Vol.  II.  p.  5,  §  25 ;  Rev.  Stat,  Arkansas,  ch. 
49,  §  19,  where,  in  certain  cases,  equitable  estates  are  also  included. 

[2  The  term  'land'  legally  includes  all  houses  and  buildings  standing  thereon. 
Whatever  is  affixed  to  the  realty  is  thereby  made  parcel  thereof,  and  belongs  to  the 
owner  of  the  soil.     Sudbury  v.  Jones,  8  Cush.  189.] 

3  If  a  tree  grows  so  near  the  confines  of  the  land  of  two  adjoining  proprietors,  that 
the  roots  extend  into  and  the  limbs  overhang  the  adjoining  close,  yet  the  property  iu 
the  tree  belongs  to  the  owner  of  the  land  in  which  the  tree  was  planted.  The  propri- 
etor of  the  adjoining  close  may  remove  the  branches  which  overhang  his  land ;  but  he 
may  not  convert  them,  nor  the  fruit,  to  his  own  use.  Holden  v.  Coates,  1  M.  &  Malk. 
112-  Masters  v.  Pollie,  2  Roll.  R.  141  5  Lyman  v.  Hale,  11  Conn.  R.  177  ;  Beards- 
lee  v.  French,  7  Conn.  R.  125.  But  qucere,  whether  he  may  remove  branches,  after 
they  have  overhung  his  land  twenty  years.    A  projection,  overhanging  the  land  by 


Title  I.     Estate  in  Fee  Simple,  s.  2.  39 

land  legally  includes  all  castles,  houses,  and  other  buildings 
standing  thereon ;  and  downwards  whatever  is  in  a  direct  line 
between  the  surface  and  the  centre  of  the  earth ;  such  as  mines 
of  metals,  coals,  and  all  other  fossils,  which  belong  to  the  owner 
of  the  surface,  except  mines  of  gold  and  silver,  for  these  by  the 
royal  prerogative  belong  to  the  crown.1  (a) 

(«)  1  Inst.  4.  a.    Idem.    Plowd.  313. 


right,  is  an  incumbrance,  and  will  justify  the  purchaser  in  repudiating  a  contract  for 
the  sale  of  an  unincumbered  title  to  the  land.    Pope  v.  Garland,  2  Y.  &  Col.  403. 

1  This  branch  of  prerogative  is  confined  to  mines  of  gold  and  silver,  and  to  those 
which  are  exclusively  such.  It  was  formerly  held  by  a  majority  of  the  judges  in  Eng- 
land, in  the  case  of  Mines,  Plowd.  310,  that  if  the  mine  was  of  baser  metal,  with  an 
intermixture  of  gold  or  silver,  this  intermixture,  however  small,  entitled  the  king  to  the 
whole.  But  this  opinion  was  strongly  controverted  at  the  time,  Plowd.  337 — 340,  and 
is  not  mentioned  by  Lord  Coke,  when  treating  of  this  subject,  in  2  Inst.  578  ;  see  also 
1  Bl.  Comra.  294  ;  and  the  law  was  declared  otherwise  by  stat.  1  W.  &  M.  st.  1,  ch.  30, 
and  5  W.  &  M.  ch.  6.  The  reasons  on  which  this  prerogative  is  founded  are,  that 
the  king  is  bound  to  defend  the  realm,  and  to  coin  and  furnish  the  currency  required 
for  this  purpose,  and  for  the  uses  of  trade  and  commerce;  to  do  which,  the  right  to  the 
mines  of  gold  and  silver  is  indispensably  necessary.     Plowd.  315,  316. 

These  reasons  would  seem  to  apply  to  the  United  States,  as  well  as  to  any  other 
sovereign  power. 

But  in  most  of  the  Royal  Charters,  under  which  this  country  was  settled,  the  grant 
of  the  soil  expressly  includes  "  all  mines,"  as  well  as  every  other  thing  included  or 
borne  in  or  upon  it ;  reserving  as  rent  only,  in  the  reddendum,  one-fifth  part  of  al 
the  gold  and  silver  ore,  to  be  delivered  at  the  pit's  mouth,  free  of  charge.  Such  were 
the  charters  of  Massachusetts,  Rhode  Island,  Connecticut,  Pennsylvania,  Maryland,  and 
Virginia.  In  the  charter  of  North  Carolina  one-fourth  was  thus  reserved  ;  and  in  that 
of  Massachusetts  one-fifth  of  the  precious  stones  is  also  included.  By  the  charter  of 
Charles  II.  to  the  Duke  of  York,  March  12,  1663,  of  the  territory  extending  from  Nova 
Scotia  to  Delaware  Bay,  all  mines  were  expressly  granted  without  any  reservation  i 
and  therefore  none  is  expressly  found  in  the  States  of  New  York,  New  Jersey,  nor  Del- 
aware. New  Hampshire  was  simply  organized  as  a  Royal  Province,  by  commission 
from  the  king.  And  as  it  was  conceded  and  declared,  in  the  case  of  the  Mines, 
Plowd.  336,  that  a  mine  royal  may  by  the  king's  grant  be  severed  from  the  crown  and 
granted  to  a  private  person,  it  results  that  upon  the  separation  of  these  States  from 
Great  Britain,  the  former  did  not  succeed  to  the  prerogative  right  to  gold  and  silver 
mines,  in  those  States  where  such  mines  were  included  in  the  terms  of  the  charters. 
Whether  the  States  could  demand  the  fifth  or  fourth  parts  reserved  as  rent,  as  the 
assignees  of  the  crown  in  law,  or  by  force  of  the  treaty  of  peace ;  and  whether  the 
United  States  may  claim  the  same  proportion  as  the  assignees  of  the  States,  under  the 
Constitution,  or  the  whole,  by  their  own  prerogative,  on  the  original  grounds  above 
stated,  are  questions  which  it  is  not  necessary  here  to  discuss.  In  Canatoo's  case, 
3  Kent,  Coram.  378.  n.,  Mr.  Justice  Clayton  said  that  the  right  of  the  State  was  a 
right  of  preemption  only,  and  that  it  was  never  considered  greater  by  the  govern- 
ment of  Great  Britain. 

The  State  of  New  York,  at  an   early  period,   asserted  its  sovereign  right   to  all 


40  Title  I.     Estate  in  Fee  Simple,  s.  3. 

(3.  Shares  in  the  property  of  a  corporation  are  real  or  personal 
property,  according  to  the  nature,  object  and  manner  of  the 
investment.  "Where  the  corporate  powers  are  to  be  exercised 
solely  in  land,  as  where  original  authority  is  given  by  the  charter 
to  remove  obstructions  in  a  river  and  render  it  navigable,  to  open 
new  channels,  &c,  to  make  a  canal,  erect  waterworks,  and  the 


mines  of  gold  and  silver  ;  giving  permission  to  the  discoverers  of  such  mines  to 
■work  them  for  twenty-one  years  only,  and  no  longer,  without  permission  of  the  legis- 
lature ;  and  extending  the  claim  to  all  such  mines  containing  also  copper,  iron,  tin  or 
lead,  where  the  latter  ores  do  not  amount  to  two-thirds  of  the  whole.  Stat.  Feb.  6, 
1789,  Sess.  12,  ch.  18.  By  the  Revised  Statutes  of  1828,  Part  1,  ch.  9,  tit.  11,  the 
same  right  is  distinctly  reasserted,  and  extended  to  all  mines  of  other  metals  found  in 
lands  owned  by  persons  not  citizens  of  any  of  the  United  States.  See  3  Kent,  Comm. 
377,  note  b. 

Where  the  owner  in  fee  sold  and  conveyed  the  lands  to  another,  reserving  to  himself 
and  his  heirs  and  assigns  all  manner  of  mines,  &c,  it  was  held  that,  under  this  reserva- 
tion, he  was  not  entitled  to  take  all  the  minerals,  but  only  so  much  as  he  could  get, 
after  leaving  a  reasonable  support  to  the  surface.  Harris  v.  Ryding,  5  M.  &  W.  60  ; 
[Smart  v.  Morton,  30  Eng.  Law  &  Eq.  385.]  If  the  mine  thus  reserved,  or  otherwise 
granted,  is  encroached  upon,  the  remedy  of  the  proprietor  is  in  trespass,  and  not  case, 
though  he  has  no  property  in  the  soil  above  the  mine ;  for  he  was  in  lawful  possession 
of  the  mine.  Harker  v.  Birkbeck;  3  Burr.  1556,  1  W.  Bl.  482.  A  grant  of  a  whole 
mineral  stratum  under  the  soil  of  the  grantor,  is  a  grant  of  a  real  hereditament  in  fee 
simple.  Stoughton  v.  Lee,  1  Taunt.  402.  And  see  Grubb  v.  Guilford,  4  Watts,  223. 
A  license  to  enter  the  lands  of  the  grantor,  and  mine  and  search  for  and  raise  metals, 
carry  them  away,  and  convert  them  to  the  grantee's  own  use,  is  not  a  mere  personal 
license,  but  is  also  a  grant  of  an  interest  in  the  property,  and  as  such  is  capable  of  being 
assigned  over.  Muskett  v.  Hill,  5  Bing.  N.  C.  694.  In  trover,  for  copper  ore  raised 
from  under  the  plaintiffs  soil,  it  was  held  that  the  presumption  that  the  right  to  the 
minerals  accompanied  the  fee  simple,  might  be  rebutted  by  proof  of  the  absence  of 
enjoyment  on  the  part  of  the  plaintiff,  and  of  user  by  persons  not  the  owners  of  the  soil. 
Rowe  v.  Grenfel,  Ry.  &  M.  396. 

In  a  lease  of  mines,  or  a  contract  for  the  sale  of  minerals  to  be  raised  therefrom  by 
the  vendee,  where  the  vendor  or  proprietor  has  an  interest  either  in  the  manner  of 
working  the  mine,  or  in  the  quantity  raised  therefrom,  the  instrument  carries  in  gremio, 
by  implication,  the  right  of  entry  and  inspection  of  the  mines  and  of  the  minerals  raised. 
Blakesley  r.  Whieldon,  1  Hare,  176. 

A  mining  concern,  created  by  a  lease  to  several  persons,  who  jointly  work  it,  with  a 
community  of  expense  and  profit,  is  to  some  purposes  a  trading  and  partnership  con- 
cern ;  and  is  therefore  subject  to  all  the  debts  of  the  partnership  property,  and  to  the 
debts  of  one  partner  to  the  other  partners  in  respect  of  the  partnership,  before  the  pri- 
vate creditors  of  an  insolvent  partner  can  come  in.  Eereday  v.  Wightwick,  1  Tamlyn, 
R.  250  ;  1  Rus.  &  My.  45.     See  also  Tredwin  v.  Bourne,  6  M.  &  W.  461. 

In  a  reservation  of  '-nil  minerals,"  in  a  grant  of  land,  it  seems  that  the  word  is 
to  be  taken  in  its  popular  signification.  Gibson  v.  Tj-son,  5  Watts,  34.  If  a 
license  to  dig  minerals  does  not  clearly,  in  its  terms,  give  the  grantee  the  exclusive  right, 
the  grantor  or  his  assigns  may  still  exercise  it  in  common  with  him.  Chetham  v.  Wil- 
liamson, 4  East,  469  ;  E.  of  Huntington  v.  Lord  Mountjoy,  4  Leon.  147. 


Title  I.     Estate  in  Fee  Simple,  s.  3 — 5.  41 

like,  as  was  the  case  of  the  New  River  water,  the  navigation  of 
the  River  Avon  and  some  others,  and  the  property  or  interest  in 
the  land,  though  it  be  an  incorporeal  hereditament,  is  vested 
inalienably  in  the  corporators  themselves,  the  shares  are  deemed 
real  estate.1  Such,  in  some  of  the  United  States,  has  been  con- 
sidered the  nature  of  shares  in  toll-bridge,  canal  and  turnpike 
corporations,  by  the  common  law ; 2  though  latterly  it  has  been 
thought  that  railway  shares  were  more  properly  to  be  regarded  as 
personal  estate.3  But  where  the  property  originally  entrusted  is 
money,  to  be  made  profitable  to  the  contributors  by  applying  it 
to  certain  purposes,  in  the  course  of  which  it  may  be  invested  iii 
lands  or  in  personal  property,  and  changed  at  pleasure,  the  capital 
fund  is  vested  in  the  corporation,  and  the  shares  in  the  stock  are 
deemed  personal  property,  and  as  such  are  in  all  respects  treated.4 
In  modern  practice,  however,  shares  in  corporate  stock,  of  what- 
ever nature,  are  usually  declared  by  statute  to  be  personal  estate.) 

4.  Money  agreed  or  directed  to  be  laid  out  in  the  purchase  of 
land  is  considered  in  equity  as  land ;  because  there,  whatever  is 
agreed  to  be  done  is  considered  as  actually  done.  "Where  money 
directed  to  be  laid  out  in  the  purchase  of  land  comes  into  the 
hands  of  the  person  who  would  have  had  the  absolute  property 
of  the  land,  in  case  a  purchase  had  been  made,  it  will  be  con- 
sidered as  money.  But  where  it  is  in  the  hands  of  a  third  per- 
son, some  act  must  be  done  by  the  person  entitled  to  it,  to  show 
that  he  considers  it  as  money,  otherwise  it  will  still  be  deemed 
land,  {a) 

5.  There  are  some  chattels  which  are  considered  as  so  an- 
nexed, and  necessary  to  the  enjoyment  of  the  inheritance,  that 
they  are  deemed  in  law  to  be  a  part  of  it,  and  descendible  to  the 

(a)  Fonb.  B.  1.  c.  6.  s.  9.  Walker  v.  Denne,  2  Ves.  Jun.  170.  Biddulph  v.  Biddulph. 
12  Ves.  161. 

iDrybutter  v.  Bartholomew,  2  P.  W.  127;  Townsend  v.  Ash,  3  Atk.  336 ;  Buck- 
eridge  v.  Ingraham,  2  Ves.  652. 

2  Wells  v.  Cowles,  2  Conn.  E.  567 ;  Price  v.  Price,  6  Dana,  107 ;  Hurst  v.  Meason. 
4  Watts,  341,  346  ;  Binney's  case,  2  Bland,  145,  146.  But  in  Massachusetts,  from  an 
early  period,  and  upon  great  consideration,  shares  in  all  these  corporations  have  been 
held  to  be  personal  estate  ;  the  corporator  having  only  a  personal  action  for  his  divi- 
dends.    Russell  v.  Temple,  3  Dane,  Abr.  108,  §  2—6. 

3  Bradley  v.  Holdsworth,  3  M.  &  W.  422,  per  Parke,  B.,  and  Alderson,  B. 

4  Bligh  v.  Brent,  2  Y.  &  C.  Exch.  R.  268,  294,  295  ;  Bradley  v.  Holdsworth,  3  M.  & 
W.  422. 


42  Title  I.    Estate  in  Fee  Simple,  s.  5 — 7. 

heir,  from  whence  they  are  called  heir  looms.  Thus,  deer  in  a 
real  authorized  park,  fishes  in  a  pond,  rabbits  in  a  warren,  and 
doves  in  a  dove-house,  are  held  to  be  part  of  the  inheritance ; 
and  belong  to  the  heir,  not  to  the  executor,  (a) 

6.  It  is  the  same  of  charters,  court  rolls,  deeds  and  other 
evidences  of  the  land,  together  with  the  chests  and  boxes  in 
which  they  are  contained.  And  where  an  ancient  horn  had 
immemorially  gone  with  the  estate,  and  had  been  delivered  to 
the  plaintiff's  ancestors,  to  hold  their  land  by  it,  it  was  decreed 
that  it  should  go  with  the  land  as  an  heir  loom,  (b) 

(7.  In  regard  to  chattels,  as  pertaining  to  the  realty  by  con- 
struction, the  principle  upon  which  they  are  so  treated  is,  that 
they  have  become  identified  with  the  realty.  Therefore  it  is  a 
rule,  that  things  personal  in  their  nature,  but  fitted  and  prepared 
to  be  used  with  real  estate,  and  essential  to  its  beneficial  enjoy- 
ment, having  been  fixed  to  the  realty,  or  used  with  it,  and 
continuing  to  be  so  used,  become  parts  of  the  land,  accessione  et 
destinatione,  and  pass  with  it  by  the  deed  of  conveyance.  Thus, 
in  the  conveyance  of  a  cotton  or  woollen  factory,  by  that  or  any 
other  general  name  which  is  understood  to  embrace  all  its  essen- 
tial parts,  the  machinery  is  included,  whether  affixed  to  the 
building  or  not.  So,  in  the  conveyance  of  a  saw-mill,  co  nomine, 
the  mill-chain,  bars,  &c,  are  included,  as  essential  parts  of  the 
mill.1  And  so  it  is  with  regard  to  the  engines,  utensils,  and 
instruments,  whether  fixed  or  loose,  prepared  perpelui  usus 
gratia,  and  employed  in  the  working  of  a  mine.2  So  of  the 
keys  and  bells  of  a  house,  the  kettles,  vats,  fire-frames,  furnaces, 
and  grates  set  therein,  pictures  and  mirrors  set  in  the  wainscot, 
the  stones  of  a  mill,  and  the  like.3  And  it  makes  no  difference 
that  they  are  for  the  time  being  removed  from  the  premises,  if  it 

(n)  2  Comm.  427.         (6)  1  Eep.  1.   Plowd.  323.    Pusey  v.  Pusey,  1  Vern.  273. 


1  Farrar  v.  Stackpole,  6  Greenl.  154;  Fisher  v.  Dixon,  12  CI.  &  Fin.  312j  3  Dane's 
Abr.  156,  §  39;  2  Com.  Dig.  tit.  Biens,  B. ;  Powell  v.  Monson,  3  Mason,  II.  459; 
Gibbon  on  Fixtures,  p.  27—31. 

2  Fisher  v.  Dixon,  12  CI.  &  Fin.  312. 

SLiford's  case,  11  Co.  46,  50;  Co.  Lit.  4;  Cave  v.  Cave,  2  Vera.  508;  Buckland 
v.  Butterfield,  2  Brod.  &  Bing.  54;  Union  Bank  v.  Emerson,  15  Mass.  159  ;  Goddard 
v.  Chase,  7  Mass.  432;  Gaffield  v.  Hapgood,  17  Pick.  192;  Noble  v.  Bos  worth,  19 
Pick.  314  ;  Colegrave  v.  Dias  Santos,  2  B.  &  C.  76  ;  Lyde  v.  Russell,  1  B.  &  Ad.  394  ; 
Washburn  v.  Sproat,  16  Mass.  449;  Goddard  v.  Bolster,  6  Greenl.  427  ;  Waterhouse 
v.  Gibson,  4  Greenl.  230  ;  6  Am.  Law  Mag.  346—362. 


Title  I.    Estate  in  Fee  Simple,  s.  7 — 8.  43 

be  for  a  temporary  purpose,  as  for  repairs  ;  for  they  afe  still 
deemed  parts  of  the  realty.1) 

(8.  But  an  exception  to  this  rule  is  admitted,  where  the  parties, 
previous  to  the  annexation  of  things  to  the  freehold,  have  mu- 
tually agreed  that  they  shall  not  become  parts  of  the  realty,  but 
shall  remain  the  property  of  the  person  annexing  them,  or  may 
be  removed  by  him.  And  a  general  usage  may  be  shown  in 
proof  of  such  agreement.2) 

1  Liford's  case,  11  Co.  50;  Wystowe's  case,  14  H.  8,  25;  Farrar  v.  Stackpole,  6 
Grcenl.  154.  In  Rhode  Island,  the  main  wheel,  steam  engine,  boilers  and  shafts 
attached  to  real  estate  for  the  purpose  of  operating  machinery,  and  all  kettles  set  and 
used  in  a  manufactory,  when  they  belong  to  the  owner  of  the  soil,  are  declared  by  statute 
to  be  real  estate,  and  the  other  implements  of  manufacture  are  deemed  personal.  Eev. 
Stat.  Rhode  Island,  1844,  p.  261. 

2  Russell  v.  Richards,  1  Fairf.  429  ;  2  Fairf.  371  ;  Hilborne  v.  Brown,  3  Fairf.  162  ; 
Osgood  v.  Howard,  6  Greenl.  452;  Wells  v.  Banister,  4  Mass.  514;  Colegrave  v, 
Dias  Santos,  2  B.  &  C.  76,  per  Best,  J. ;  Hare  v.  Horton,  5  B.  &  Ad.  715  ;  Heermance 
v.  Vemoy,  6  Johns.  6  ;  Aldrich  v.  Parsons,  6  N.  Hamp.  555  ;  Ashmun  v.  Williams, 
8  Pick.  402.  Buildings  erected  on  the  land  of  another,  without  his  consent,  become 
part  of  the  realty  ;  and  if  erected  by  the  husband  on  his  wife's  land,  they  become  hers, 
she  being  incapable  of  contracting  with  him.  Washburn  v.  Sproat,  16  Mass.  449  ; 
Pierce  v.  Goddard,  22  Pick.  559.  A  partition  fence,  though  not  precisely  on  the 
line,  goes  to  the  grantee,  unless  it  be  otherwise  agreed.  Ropps  v.  Barker,  4  Pick. 
239.  [A  house  built  and  occupied  by  a  reversioner,  with  the  assent  of  the  tenant 
for  life,  is  not  personal,  but  real,  estate.  Cooper  v.  Adams,  6  Cush.  87.  "  What- 
ever is  affixed  to  the  realty  is  thereby  made  parcel  thereof,  and  belongs  to  the 
owner  of  the  soil.  Quicquid  plantatur  solo,  solo  cedit.  Things  personal  in  their 
nature,  but  prepared  and  intended  to  be  used  with  real  estate,  having  been  fixed  to 
the  realty  and  used  with  it,  become  part  of  the  land  by  accession,  pass  with  it,  and 

•belong  to  the  owner  of  the  land.  1  Cruise's  Dig.  (Greenl.  ed.)  Gibbons  o.n  Fixtures,  2. 
It  follows  that  where  there  is  no  agreement  to  change  the  legal  rights  of  the  parties, 
materials  when  used  for  building  a  house  become  part  of  the  freehold,  and  cannot  be 
reclaimed  by  their  original  owner  after  annexation  to  the  realty,  as  against  the  owner 
of  the  land  to  which  they  have  been  affixed.  Buildings  erected  on  land  of  another, 
'voluntarily  and  without  any  contract  with  the  owner,  become  part  of  the  real  estate, 
and  belong  to  the  owner  of  the  soil.  16  Mass.  449  ;  22  Pick.  559  ;  Leland  v.  Gassett, 
17  Verm.  403.  An  exception  is  admitted  to  this  general  rule  where  there  is  an  agree- 
ment, express  or  implied,  between  the  owner  of  the  real  estate  and  the  proprietor  of 
materials  and  buildings,  that  when  annexed  to  the  realty,  they  shall  not  become  parts 
of  it,  but  shall  still  remain  the  property  of  the  person  annexing  them.  In  such  case, 
the  law  gives  effect  to  the  agreement  of  the  parties,  and  personal  property,  though 
affixed  to  the  realty,  retains  its  original  characteristics,  and  belongs  to  its  original 
owner.  Within  this  exception  are  included  not  only  cases  where  there  is  an  express 
agreement  between  the  parties  that  personal  property  shall  not  become  real  estate  by 
annexation  to  the  soil,  but  also  that  large  class  of  cases  which  arise  between  landlord 
and  tenant,  in  which  by  agreement,  either  express  or  implied,  from  usage  or  otherwise, 
the  tenant  is  allowed  to  retain  as  his  own  property,  if  seasonably  removed,  fixtures 
erected  by  him  for  purposes  of  trade,  ornament,  or  ordinary  use,  upon  leasehold  premises 


44  Title  1.     Estate  in  Fee  Simple,  s.  9. 

(9.  The  question  whether  trees  and  growing  crops  are  real 
or  personal  property,  which  arises  most  frequently  in  the  applica- 
tion of  the  statute  of  frauds,  depends  mainly  on  the  intention 
of  the  parties.  It  is  well  settled  that  a  contract  for  the  sale  of 
crops  of  the  earth,  ripe,  but  not  yet  gathered,  is  not  a  contract 
for  any  interest  in  lands,  and  so  not  within  the  statute  of  frauds, 
though  the  vendee  is  to  enter  and  gather  them.  Subsequently 
it  has  been  held,  that  a  contract  for  the  sale  of  a  growing  crop, 
for  example  a  crop  of  potatoes,  is  essentially  the  same,  whether 
they  are  covered  with  earth  in  a  field,  or  stored  in  a  box  ;  in 
either  case  the  thing  sold  is  but  a  personal  chattel,  and  so  is  not 
within  the  statute  of  frauds.  The  later  cases  confirm  the  doc- 
trine involved  in  this  decision,  namely,  that  the  transaction  takes 
its  character  of  realty  or  personalty,  from  the  principal  subject- 
matter  of  the  contract,  and  the  intent  of  the  parties ;  and  that 
therefore  a  sale  of  any  growing  produce  of  the  earth,  reared  by 
labor  and  expense,  in  actual  existence  at  the  time  of  the  con- 
tract, whether  it  be  in  a  state  of  maturity  or  not,  is  not  to  be 
considered  a  sale  of  an  interest  in  or  concerning  land.  In 
regard  to  things  produced  annually,  by  the  labor  of  man,  the 
question  is  sometimes  solved  by  reference  to  the  law  of  emble- 
ments ;  on  the  ground,  that  whatever  will  go  to  the  executor, 
the  tenant  being  dead,  cannot  be  considered  as  an  interest  in 
land.  But  the  case  seems  also  to  be  covered  by  a  broader  prin- 
ciple of  distinction,  namely,  between  contracts,  conferring  an 
exclusive  rjght  to  the  land  for  a  time,  for  the  purpose  of  making* 
a  profit  of  the  growing  surface,  and  contracts  for  things  annexed 
to  the  freehold,  in  prospect  of  their  immediate  separation  ;  from 
which  it  seems  to  result,  that  where  timber  or  other  produce  of 


during  his  tenancy."  Sudbury  v.  Jones,  8  Gush.  189,  190.  See  also  6  Gush.  58,  87  : 
Trull  v.  Fuller,  28  Maine,  545;  Corliss  v.  McLagin,  29  lb.  115;  Providence  Gas  Co. 
v.  Thurber,  2  R.  I.  15  ;  Curtiss  v.  Hoyt,  19  Conn.  154;  Farrar  v.  Chauffetete,  5  Denio, 
527;  King  v.  Wilcomb,  17  Barb.  Sup.  Ct.  263  ;  Vanderpoel  v.  Van  Allen,  10  lb.  157; 
Dubois  v.  Kelly,  lb.  496;  Buckley  v.  Buckley,  11  lb.  43;  Godard  v.  Gould,  14  lb.  662  ; 
Lawrence  v.  Kemp,  1  Duer,  363  ;  Heaton  v.  Findlay,  12  Penn.  State  R.  (2  Jones)  304 ; 
Harlan  v.  Harlan,  15  lb.  (3  Harris)  507;  Rice  v.  Adams,  4  Harring.  332;  McKim  v. 
Mason,  3  Md.  Ch.  Decis.  186;  Wentz  v.  Fincher,  12  Ired.  297 ;  Finney  v.  Watkins,  13 
Miss.  291  ;  Teaff  v.  Hewitt,  1  Ohio  State  R.  511 ;  Mason  v.  Fenn,  13  111.  525;  Cope  v. 
Romeyn,  4  McLean,  384  ;  Regina  v.  Halsam,  6  Eng.  Law  &  Eq.  321  ;  Wiltshear  v. 
Cottrell,  18  lb.  142 ;  Parsons  v.  Copeland,  38  Maine,  537  ;  Doak  v.  Wiswell,  lb.  569; 
Baker  v.  Davis,  19  N.  H.  (10  Foster)  325  ;  Gardner  v.  Finley,  19  Barb.  317;  Roberts 
v.  Dauphin  Dep.  Bank,  19  Penn.  (7  Harris,)  71.] 


Title  I.    Estate  in  Fee  Simple,  s.  9 — 10.  45 

the  land,  or  any  other  thing  annexed  to  the  freehold,  is  specifi- 
cally sold,  whether  it  is  to  be  severed  from  the  soil  by  the  vendor, 
or  to  be  taken  by  the  vendee,  under  a  special  license  to  enter 
for  that  purpose,  it  is  still,  in  the  contemplation  of  the  parties, 
evidently  and  substantially  a  sale  of  goods  only,  and  so  is  not 
within  the  statute.1) 

10.'  Incorporeal  property  consists  of  rights  and  profits  arising 
.  from  or  annexed  to  land ;  such  as  advowsons  and  rents,  which 
are  held  to  be  of  a  real  nature.  Even  offices  exercisable 
within  *  certain  places,  though  not  annexed  to  land,  are  *47 
said  to  savor  of  the  realty ;  and  dignities  or  titles  of 
honor,  having  been  originally  annexed  to  land,  are  also  con- 
sidered as  real  property.'2  (a) 

(a)  (Allen  v.  McKean,  1  Sumn.  301.) 

1  Greenl.  on  Evid.  §  271,  and  cases  tbere  cited.  The  case  of  growing  crops  has 
been  regulated  by  statute,  in  several  of  the  United  States.  Thus,  in  Mississippi  they 
cannot  be  levied  upon.  Stat.  1840,  cb.  5.  §  9.  In  Michigan,  they  are  liable  to  levy, 
but  not  to  sale  under  execution,  until  ripe  or  severed  from  the  ground ;  the  levy 
creating  a  lien  until  thirty  days  after  maturity  or  severance  of  the  crop.  Stat.  1840, 
ch.  124.  In  Tennessee,  no  growing  crop  can  be  levied  upon,  until  the  15th  of  Novem- 
ber next  after  it  is  matured;  unless  the  owner  has  absconded.  Stat.  1833,  ch.  20. 
And  see  Rutledge  v.  Walton,  4  Yerg.  458.  In  Alabama,  there  can  be  no  levy  until  the 
crop  is  gathered.  Toulmin's  Dig.  tit.  24.  ch.  16.  p.  319.  In  Kentucky,  the  courts 
formerly  held  that  even  an  unripe  crop  might  be  seized  and  sold  on  execution  ;  con- 
trary to  decisions  in  other  States.  See  Penhallow  v.  Dwight,  7  Mass.  34  ;  Stewart  v. 
Doughty,  9  Johns.  108.  But'bj  stat.  1834,  LL.  Ken.  Vol.  I.  p.  657,  no  growing  crop 
is  now  liable  to  be  taken  and  sold  on  execution,  until  it  is  severed  from  the  land ; 
except  crops  of  corn,  left  standing  after  the  first  day  of  October.  [Growing  fruit  trees 
and  fences  enclosing  a  field  are  fixtures,  and  as  such  belong  to  the  freehold.  Mitchell 
v.  Billingsley,  17  Ala.  391.  For  decisions,  whether  or  not  growing  crops  pass  with 
the  land,  see  Gillett  v.  Balcom,  6  Barb.  Sup.  Ct.  370  ;  Bear  v.  Bitzer,  16  Penn.  State 
R.  (4  Harris)  175  ;  Pitts  v.  Hendrix,  6  Geo.  452 ;  Pickins  v.  Reed,  1  Swan,  Tenn.  80 ; 
Gibbons  v.  Dillingham,  5  Eng.  (Ark.)  9  ;  Jones  v.  Thomas,  8  Blackf  428  ;  Post,  §  45, 
note,  p.  *  55.] 

2  A  corporate  right  to  select  and  acquire  land,  for  the  purposes  of  the  charter  ;  such, 
for  example,  as  a  canal  or  a  railroad,  is  held  to  be  an  incorporeal  hereditament.  Chesa- 
peake &  Ohio  Canal  Co.  v.  Baltimore  &  Ohio  Railroad  Co.,  4  Gill.  &  Johns.  1.  So,  of 
a  permanent  right  to  flow  lands.  Harris  v.  Miller,  1  Meigs,  158;  a  ferry  right.  Bow- 
man v.  Wathen,  2  McLean,  176;  Bridges  v.  Purcell,  1  Dcv.  &  Bat.  192;  and  a  land- 
warrant,  issued  by  the  State  of  Tennessee,  which,  by  law,  goes  to  the  heir.  Dunlap  v. 
Gibbs,  4  Yerg.  94. 

A  right  to  a  pew  in  a  church,  by  the  common  law,  is  an  incorporeal  hereditament, 
being  only  a  right  to  occupy  it  during  divine  service.  In  England,  the  freehold  of  the 
church  is  in  the  parson  for  the  time  being.  In  the  United  States,  the  title  generally 
depends  on  statutes,  enacted  by  the  several  States,  to  regulate  this  description  of  prop- 
erty.    In  some  of  them,  as,  Maine,  Michigan,   Connecticut,  Massachusetts,  (except  the 


46  Title  I.    Estate  in  Fee  Simple,  s.  11—13. 

11.  An  estate  in  land  means  such  an  interest  as  the  tenant 
hath  therein.  It  is  called  in  Latin  status,  because  it  signifies  the 
condition  or  circumstance  in  which  the  owner  stands  with  regard 
to  his  property.  To  ascertain  this  with  precision  and  accuracy, 
estates  in  land  may  be  considered  in  a  threefold  view : — 1.  With 
regard  to  the  quantity  of  interest  which  the  tenant  has  in  his 
tenement.  2.  With  regard  to  the  time  at  which  that  quantity  of 
interest  is  to  be  enjoyed.  3.  With  regard  to  the  number  and  . 
connection  of  the  tenants,  (a) 

12.  First,  with  regard  to  the  quantity  of  interest  which  the 
tenant  has  in  his  tenement.  This  is  measured  by  its  duration 
and  extent;  and  occasions  the  primary  division  of  estates  into 
such  as  are  freehold,  and  such  as  are  less  than  freehold. 

13.  An  estate  of  freehold  is  an  interest  in  lands,  or  other  real 
property,  held  by  a  free  tenure,  for  the  life  of  the  tenant,  or  that 
of  some  other  person,  or  for  some  uncertain  period.  It  is  called 
liberum  tenementum,  frank  tenement  or  freehold ;  and  was  for- 
merly described  to  be  such  an  estate  as  could  only  be  created  by 
livery  of  seisin,  a  ceremony  similar  to  the  investure  of  the  feudal 

(n)  1  Inst.  345.  a.     2  Black.  Comm.  103.     Plowd.  555. 

city  of  Boston,)  pews  are  expressly  declared  to  be  real  estate.1  In  others,  as,  New 
Hampshire,  (and  in  Boston,)  they  are  declared  to  be  personal  estate.  It  follows  that, 
in  the  absence  of  any  statute  provisions,  this  kind  of  property  is  to  be  considered  as 
real  estate,  in  all  cases  arising  under  the  statutes  ot  frauds,  or  of  conveyances,  or  of 
descents  and  distributions.  The  right  of  the  pew-holder  is  subject  to  that  of  the  pro- 
prietors, or  trustees,  or  parish,  in  whomsoever  the  general  title  is  vested,  to  repair,  alter, 
remove,  abandon,  or  rebuild  the  edifice,  for  the  purpose  of  more  convenient  worship, 
and  when  it  is  necessary  for  that  purpose.  But  if  such  alteration  is  not  necessary,  but 
is  made  solely  for  reasons  of  expediency  or  pleasure,  the  pew-holder  is  entitled  to  be 
indemnified  for  the  loss  of  his  pew.  And  while  the  house  remains,  the  pew-holder  may 
maintain  ejectment,  case,  or  trespass,  according  to  the  circumstances,  if  he  be  disturbed 
in  his  right.  See  3  Kent,  Comm.  402,  and  cases  there  cited  ;  Bates  v.  Sparrell,  10 
Mass.  323;  Sargent  v.  Peirce,  2  Met.  80;  Fassett  v.  Boylston,  19  Pick.  361;  North 
Bridgewater  v.  Waring,  24  Pick.  304 ;  Freligh  v.  Piatt,  5  Cow.  R.  494  ;  Heeney  v. 
St.  Peter's  Ch.  2  Edw.  N.  Y.  Chan.  R.  608  ;  Shaw  v.  Beveridge,  3  Hill.  N.  Y.  E.  26. 
By  the  common  law  of  England,  the  right  to  a  pew  in  a  church  can  exist  only  by  a 
faculty  granted,  or  by  prescription  ;  and  faculties  are  not  granted,  at  the  present  day, 
unless  under  special  circumstances,  they  being  in  derogation  of  the  common  right  to 
free  seats  in  the  church ;  and  if  granted  without  the  condition  of  residence  in  the 
parish,  they  are  void.  Morgan  v.  Curtis,  3  M.  &  R.  389 ;  Fuller  v.  Lane,  2  Add.  R. 
427,  428  ;  Woollcombe  v.  Ouldridge,  3  Add.  R.  1  ;  Pettman  v.  Bridger,  1  Phill.  316, 
323 — 325.  The  law  of  England  in  regard  to  this  species  of  property  is  fully  discussed 
in  the  Law  Magazine,  Vol.  II.  p.  1 — 29. 

1  [Pews  in  all  houses  of  public  worship  in  Massachusetts  are  now  made  personal  prop- 
erty.   Acts  1855,  ch.  122.] 


Title  I.     Estate  in  Fee  Simple,  s.  13 — 17.  47 

law.  But  since  the  introduction  of  certain  modern  conveyances, 
by  which  an  estate  of  freehold  may  be  created  without  livery  of 
seisin,  this  description  is  not  sufficient,  (a) 

14.  There  are  two  qualities  essentially  requisite  to  the  exist- 
ence of  a  freehold  estate  :  —  1.  Immobility,  that  is,  the  subject- 
matter  must  either  be  land,  or  some  interest  issuing  out  of  or 
annexed  to  land.  2.  A  sufficient  legal  indeterminate  duration ; 
for  if  the  utmost  period  of  time  to  which  an  estate  can  last  is 
fixed  and  determined,  it  is  not  an  estate  of  freehold,  (b) 

15.  Thus  if  lands  are  conveyed  to  a  man  and  his  heirs  for 
ever,  or  for  the  term  of  his  natural  life,  or  for  the  term  of  ano- 
ther's life,  or  until  he  is  married,  or  goes  to  Rome,  he  has  an 
estate  of  freehold  ;  but  if  lands  are  limited  to  a  man  for  five 
hundred  years,  or  for  ninety-nine  years,  if  he  shall  so  long  live,  he 
has  not  an  estate  of  freehold.     And  the  law  was  precisely 

the  *  same  when  Bracton  wrote.  Et  sciendum  quod  libe-  *  48 
rum  tenementum  est  id  quod  quis  tenet  sibi  et  hosredibus 
suis,  infeodo,  et  hcereditate,  vel  in  feodo  tantum,  sibi  et  hceredibus 
suis.  Item  ut  liberum  tenementum,  sicut  ad  vitam  tantam,  vel 
eodem  modo  ad  tempus  indeterminatum,  absque  aliqud  certd  tem- 
poris  prcefinitione ;  sc.  Donee  quid  fiat  vel  nonfiat:  ut  si  dicatur, 
Do  tali  donee  ei  providero.  Liberum  autem  tenementum  non  potest 
dici  alicujus  quod  quis  tenet  ad  certum  numerum  annorum,  men- 
sium,  vel  dierum ;  licet  ad  terminum  centum  annorum,  quce  excedit 
vitas  hominum.  (c) 

16.  It  has  been  shown  that,  upon  the  introduction  of  the 
feudal  law,  all  the  lands  in  England  became  holden  either  by  a 
free  or  a  base  tenure.  The  tenant  who  held  by  a  free  tenure 
had  always  a  right  to  the  enjoyment  of  the  land  for  his  life  at 
least,  and  could  not  be  dispossessed,  even  for  the  non-payment  of 
his  rent,  or  the  non-performance  of  his  services ;  whereas  the 
tenant  who  held  in  villenage  might  be  turned  out  at  the  pleasure 
of  his  lord ;  and  his  possession  being  perfectly  precarious,  was 
considered  to  be  the  possession  of  his  lord,  to  whom  he  was  in  a 
great  degree  a  mere  slave,  (d) 

17.  The  person  thus  holding  land  by  a  free  tenure  was,  there- 
at) Britton,  c.  32.     1  Inst.  48.  a.  (6)  2  Bl.  Comm.  38G. 

(c)  1  Inst.  42.  a.    Bract.  207.  a. 

{d)  Dissert,  c.  2.  s.  5.  (Ante,  Tenures,  ch.  2.  s.  5.)  Black.  Law  Tracts,  1.  Cons,  on  Cop. 
153, 154. 


48  Title  I.     Estate  in  Fee  Simple,  s.  17—20. 

fore,  called  a  freeholder,  because  he  might  maintain  his  possession 
against  his  lord,  and  for  this  reason  liberum  tenementum  was  op- 
posed to  villenage.  Thus  Bracton  says, —  Item  dicitur  liberum 
tenementum  ad  differ entiam  ejus  quod  est  villenagium,  quia  tene- 
mentorum  aliud  liberum,  aliud  villenag-ium :  for  an  estate  of 
freehold  once  created  could  not  cease  without  entry  or  claim. 
And  the  acquisition  of  an  estate  of  this  kind  was  attended  with 
several  valuable  rights  and  privileges  ;  the  freeholder  became  a 
member  of  the  county  court,  one  of  the  pares  curice  in  the  court 
baron  or  lords'  court,  was  entitled  to  be  summoned  on  juries  in  the 
king's  court,  and  to  vote  at  the  election  of  a  knight  of  the  shire,  (a) 

18.  In  subsequent  times  the  word  freehold  was  in  some  cases 
applied  to  the  estate  or  interest  only  of  the  tenant ;  as  where  a 
person  had  an  estate  for  life  in  lands  held  in  villenage,  he  was 
said  to  have  a  freehold  interest.  Thus  Lord  Coke  says:  —  "A 
freehold  is  taken  in  a  double  sense ;  either  it  is  named  a  freehold 
in  respect  of  the  state  of  the  law,  and  so  copyholders  may  be 
freeholders  ;  for  any  that  hath  an  estate  for  his  life,  or  any  greater 

estate  in  any  land  whatsoever,  may  in  this  sense  be  termed 

49  *       a  *  freeholder  ;  or,  in  respect  to  the  land,  and  so  it  is  op- 

posed to  copyholders,  that  what  land  soever  is  not  copy- 
hold is  freehold,  (b) 

19.  It  is,  however,  fully  proved  by  Sir  W.  Blackstone,  in  his 
Considerations  on  Copyholders,  that  no  person  can  be  considered 
as  a  freeholder,  or  entitled  to  the  privileges  of  a  freeholder,  unless 
his  estate  consists  of  free  land.  So  that  although  the  determina- 
tion of  an  estate  be  uncertain,  yet  if  it  is  held  by  a  base  tenure, 
it  is  not  considered  in  law  as  a  freehold ;  nor  has  the  tenant  any 
of  those  privileges  which  the  law  gives  to  freeholders  ;  for  in  that 
case  he  has  a  freehold  interest  only,  whereas  no  estate  is,  strictly 
speaking,  freehold,  unless  the  possessor  holds  it  by  a  free  tenure ; 
therefore  all  freehold  estates  must  now  be  held  in  socage. 

20.  Lord  Coke  says,  a.  freehold  estate  may  at  several  times  be 
moveable,  sometimes  in  one  person,  and  alternis  vicibus  in  anoth- 
er ;  as  if  there  be  eighty  acres  of  meadow,  which  have  been  used, 
time  out  of  mind,  to  be  divided  between  certain  persons,  and 
that  a  certain  number  of  acres  appertain  to  every  one  of  these 
persons,  to   be    yearly    assigned   and    allotted    to   them ;    they 

(a)  207.  a.    1  Inst.  218.  a.  (b)  Coke,  Cop.  s.  15. 


Title  I.    Estate  in  Fee  Simple,  s.  20—24.  49 

have    freehold  estates  in  their  respective  portions  of  the  mea- 
dow, (a) 

21.  A  man  may  have  an  inheritance  in  an  upper  chamber, 
though  the  lower  buildings  and  soil  be  in  another ;  and  seeing  it 
is  an  inheritance  corporeal,  it  shall  pass  by  livery.1  (b) 

22.  The  possession  of  a  feud  was  called  seisin,  which  denoted 
the  completion  of  the  investiture  by  which  the  tenant  was  ad- 
mitted to  the  land.  Upon  the  introduction  of  the  feudal  law 
into  England,  the  word  seisin  was  only  applied  to  the  possession 
of  an  estate  of  freehold ;  in  contradistinction  to  that  precarious 
kind  of  possession  by  which  tenants  in  villenage  held  their  lands, 
which  was  considered  to  be  the  possession  of  their  lords,  in 
whom  the  freehold  continued,  (c) 

23.  Where  a  freehold  estate  is  conveyed  to  a  person  by 
feoffment,  with  livery  of  seisin,  or  by  any  of  those  conveyances 
which  derive  their  effect  from  the  statute  of  uses,  he  acquires  a 
seisin  in  deed,  and  a  freehold  in  deed.  But  where  a  freehold 
estate  is  devolved  upon  a  person  by  act  of  law,  as  by  de- 
scent, *  he  only  acquires  a  seisin  in  law,  that  is,  a  right  to  *  50 
the  possession  ;  and  his  estate  is  called  a  freehold  in  law ; 

for  he  must  make  an  actual  entry  on  the  land  to  acquire  a  seisin, 
and  a  freehold  in  deed.2  (</) 

24.  The  entry  must  be  made  by  the  person  having  right,  or 
some  one  authorized  by  him ;  3  for  the  mere  act  of  going  on  the 

(a)  1  Inst.  4,  a.     Welden  v.  Bridgewater,  Cro.  Eliz.  421.  (b)  1  Inst.  48.  b. 

(c)  Dissert,  c.  1.     1  Inst.  153.  a.     266  b.     1  Burr.  R.  107.      1  Inst.  200.  b.    Plowd.  503. 

((Z)  1  Inst.  266  b.     See  tit.  29.     Descent,  c.  3. 

1  la  such  case  the  two  parts  of  the  edifice  are  regarded  as  separate  dwelling-houses. 
9  E.  4,  38  ;  5  H.  7,  9  ;  Bro.  Abr.  Demand,  20 ;  Loring  v.  Bacon,  4  Mass.  575  j  Otis 
v.  Smith,  9  Pick.  293 ;  Proprietors,  &c.  v.  Lowell,  1  Met.  538.  Even  a  lease  of  a 
yard  does  not  necessarily  pass  a  cellar  under  the  yard,  in  the  occupation  of  another. 
Doe  d.  Ereeland  v.  Burt,  1  T.  R.  701.     And  see  Winton  v.  Cornish,  5  Ohio  E.  478. 

2  This  has  been  altered  by  statute  3  &  4  W.  4,  c.  106.  In  the  United  States,  the 
doctrine  most  generally  prevalent  is,  that  no  actual  entry  is  necessary,  either  by  an  heir 
or  a  grantee,  in  order  to  give  him  a  seisin  in  deed,  provided  the  ancestor  or  grantor 
was  seised  at  the  time,  or  the  possession  was  vacant,  the  ancestor  or  grantor  hav- 
ing the  right.  Wells  v.  Prince,  4  Mass.  64  ;  Green  v.  Chelsea,  24  Pick.  71  ;  Jack- 
son v.  Howe,  14  Johns.  406  ;  Stearns  on  Real  Actions,  p.  32,  83  ;  Bates  v.  Norcross, 
14  Pick.  224  ;  Magoun  v.  Lapham,  21  Pick.  135  ;  Green  v.  Liter,  8  Cranch.  229  ;  Barr 
v.  Gratz,  4  Wheat.  213,  221.     See  4  Kent,  Comm.  385—389,  and  post,  tit.  Deed. 

8  The  authority  may  be  by  parol ;  and  a  general  authority  to  take  care  of  the  prop- 
erty of  the  principal  is  sufficient  for  this  purpose.     And  if  the  entry  is  made  by  a  stran- 
ger, in  the  name  and  behalf  of  the  owner,  who  afterwards  adopts  and  ratifies  the  act, 
VOL.  I.  5 


50  Title  I.     Estate  in  Fee  Simple,  s.  24 — 26. 

land  will  not  amount  to  a  legal  entry,  sufficient  to  vest  the  actual 
seisin  in  the  person  who  has  the  right ;  but,  in  order  to  constitute 
a  legal  entry,  the  person  must  enter  with  that  intent,  and  do  some 
act  to  show  such  intention.1  (a) 

25.  The  entry  of  the  heir  upon  any  part  of  the  estate  will 
give  him  a  seisin  in  deed  of  all  the  lands  lying  in  the  same 
county  ;  for,  since  the  freehold  in  law  was  cast  upon  him  by  the 
death  of  his  ancestor,  and  no  person  was  in  possession,  so  that 
no  particular  estate  is  to  be  defeated,  a  general  entry  into  part 
is  sufficient  to  reduce  the  whole  into  actual  possession  ;  but  where 
lands  lie  in  different  counties,  there  must  be  an  entry  in  each 
county.2  (b) 

26.  If  the  heir  is  deterred  from  entering  by  bodily  fear,  he 
may  make  claim  as  near  as  he  can.  Such  claim  is,  however, 
only  in  force  for  a  year  and  a  day  ;  but  if  it  is  repeated  once  in 
the  space  of  every  year  and  a  day,3  which  is  called  continual 
claim,f  it  has  the  same  effect  as  a  legal  entry,  (c) 

(a)  1  Inst,  245.  b.     Plowd.  92.     6  Mod.  44.  (b)  1  Inst.  15.  a.     252.  b. 

(c)  1  Inst.  250.  a  &  b.  251. 

this  also  is  sufficient.     Richards  v.  Eolsom,  2  Fairf.  70;  Stearns  on  Real  Actions,   p. 

45 46  ;  Tolman  v.  Emerson,  4  Pick.  160.     The  maxim,  Omnis  ratihabitio  retrotrahitur. 

et  mandate  cequiparatur,  was  fully  considered  and  expounded  in  Bird  v.  Brown,  14  Jnr. 
132 ;  in  which  case  the  Court  were  of  opinion,  that  to  enable  the  party  on  whose  be- 
half the  act  was  done,  or  his  agent,  to  take  advantage  of  it  in  an  action  of  tort,  the  rati- 
fication must  take  place  at  a  time,  and  under  circumstances  when  the  ratifying  parly  might 
himself  lawfully  have  done  the  act  which  he  ratifies.  See  3  Law  Rep.  12.1,  127,  128,  N.  S. 
Pooler's  case,  9  Rep.  106  a;  Ld.  Audley's  case,  Cro.  El.  561:  Moore,  457;  Poph. 
108  S.  C.  If  the  possession  is  vacant,  or  no  one  is  upon  the  land  at  the  time  of  entry, 
no  declaration  of  intention  by  the  agent  is  necessary.  Tolman  v.  Emerson,  supra. 
[When  part  of  the  heirs  enter  on  lands  that  descend  to  them,  their  entry  is  presumed  to 
be  according  to  their  legal  title,  and  it  enures  to  the  benefit  of  all,  so  that  all  are  seized 
unless  those  who  enter  claim  adversely  and  oust  the  others.  Means  et  al.  v.  Welles  et 
al.  12  Met.  356.] 

i  If  the  act  would  have  been  lawful  in  a  mere  stranger,  such  as  riding  along  a  public 
way  over  the  land,  it  is  not  sufficient.  It  must  be  such  an  act  as,  in  a  stranger,  would  be 
a  trespass.  Robison  v.  Swett,  3  Greenl.  316.  See  Stearns  on  Real  Actions,  p.  45  ;  Co. 
Lit.  245,  b;  Holly  v.  Brown,  14  Conn.  R.  255,  269,  270;  Altemas  v.  Campbell,  9 
Watts,  28. 

2  Feoffments  were  anciently  made  on  the  land,  before  thepares  curice;  and  the  entry  of 
the  feoffee  was  recorded  in  the  records  of  the  lord's  court.  Afterwards,  when  the  at- 
testation of  the  pares  curim  was  not  held  necessary,  that  of  the  pares  comitaliis  was  ;  and 
hence  an  entry  in  each  county  was  still  held  necessary,  because  it  was  to  be  tried  by  the 
pares  comitatiis.     See  Steams  on  Real  Actions,  p.  3.     Gilbert  on  Tenures,  p.  39 — 40. 

3  This  is  understood  to  mean  nothing  more  than  a  full  year.    Co.  Lit.  250  b.  note  (1.) 
[t  This  is  now  abolished.    By  Stat.  3  &  4  Will.  4.  c.  27,  s.  11,  it  is  enacted  that  no 


Title  I.     Estate  in  Fee  Simple,  s.  27 — 30.  51 

27.  The  entry  of  the  heir  is  only  necessary  where  the  lands 
were  in  the  actual  occupation  of  the  ancestor  at  the  time  of  his 
death  ;  for  if  the  lands  are  held  under  a  lease  for  years,  and  the 
lessee  entered  under  the  lease,  the  heir  is  considered  as  having 
seisin  in  deed,  before  entry  or  receipt  of  rent,  because  the  posses- 
sion of  the  lessee  for  years  is  his  possession,  f  (a) 

28.  The  possession  of  a  guardian  in  socage  is  also  the  posses- 
sion of  the  ward.  So  that  if  a  widow  having  a  son,  on  whom 
her  husband's  estate  descends,  continues  in  possession  after  her 
husband's  death,  the  law  considers  her  as  guardian  in  socage  to 
her  son ;  and,  therefore,  admits  the  son,  by  that  means,  to  have 
a  seisin  in  deed  of  the  land,  (b) 

29.  Where  lands  are  let  on  leases  for  lives,  the  freehold  is  in 
the  lessees,  consequently  the  heir  has  no  immediate  right 

of  entry  *  on  the  death  of  his  ancestor.     He  is,  however,       *  51 
entitled  to  the  rent  reserved  on  the  lease,  by  the  receipt  of 
which  he  becomes  seised  of  the  rent,  and  also  of  the  reversion 
expectant  on  the  determination  of  the  lease,  (c) 

30.  The  seisin  in  law,  which  the  heir  acquires  on  the  death  of 
his  ancestor,  may  be  defeated  by  the  entry  of  a  stranger,  claiming 
a  right  to  the  land,  which  entry  is  called  an  abatement ;  and  in 
such  a  case  the  only  mode  of  regaining  the  seisin  is  by  an  entry 
of  the  legal  owner,  which  will  restore  him  to  the  possession.1  If 
the  abator  dies  seised,  the  lands  will  descend  to  his  heir ;  and 
previously  to  the  recent  statute  of  limitations  such  descent  tolled, 
or  took  away  the  entryj  of  the  heir ;  who,  in  that  case,  was 
driven  to  his  action,  (d) 

(a)  1  Inst.  15.  a.     3  Wils.  R.  521.     7  Term  R.  390.     8  Term  R.  213.     Tit.  8.  e.  1. 

(b)  Goodtitle  v.  Newman.  3  Wils.  516.     Tit.  29.  c.  3.  §  65,  66. 

(c)  1  Inst.  15.  b. 

(d)  1  Inst.  277.  a.    Lit.  s.  385.     Vide  tit.  29.  c.  1.    Tit.  31.  c.  2. 


continual  or  other  claim  upon  or  near  any  land  shall  preserve  any  right  of  making  an 
entry  or  distress  or  bringing  an  action.] 

[t  See  s.  35  of  the  above  statute.] 

[J  The  law  is  now  altered  by  Stat.  3  &  4  Will.  4,  c.  27,  s.  39,  which  enacts,  that  no 
descent  cast,  discontinuance,  or  warranty,  which  may  happen  or  be  made  after  the  31st 
December.  1 833,  shall  toll  or  defeat  any  right  of  entry  or  action  for  the  recovery  of 
land.] 

1  In  several  of  the  United  States,  it  has  been  provided  by  statutes,  that  no  descent 
shall  take  away  the  right  of  entry.  See  Maine  Rev.  St.  ph.  145,  §  8 ;  Massachusetts 
Rev.  St.  ch.  101,  §  5  ;  2  Rev.  St.  N.  York,  Part  3,  ch.  4,  tit.  2,  §  15,  p.  393,  (3d  cd.); 
Indiana  Rev.  St.  ch.  45,  §  7  :  Arkansas  Rev.  St.  ch.  91,  §  3.     In  Massachusetts  and 


52  Title  I.     Estate  in  Fee  Simple,  s.  31—32. 

31.  Where  a  younger  brother  entered  upon  the  death  of  his 
ancestor,  such  entry  was  not  an  abatement  ;  for  it  should  be 
intended  that  the  younger  brother  did  not  set  up  a  new  title, 
but  only  entered  to  preserve  the  possession  of  the  ancestor  in 
the  family,  that  no  one  else  should  abate.  And  if  the  younger 
son  died  in  possession,  still  the  elder  son  might  enter ;  for  the 
law  would  not  intend  the  entry  of  the  younger  son  to  be  a 
wrongful  act,  therefore  his  possession  became  that  of  the 
elder,  f 1  (a) 

32.  Where  a  person  is  in  the  actual  seisin  of  an  estate  of  free- 
hold, he  may  lose  that  seisin  by  a  stranger's  entering  on  the 
estate,  and  forcibly  ousting  or  dispossessing  him  of  it ;  which 
is  called  a  disseisin,  and  is  thus  defined  by  Littleton,  s.  279, — 
"  Disseisin  is  properly  where  a  man  entereth  into  lands  or  tene- 
ments, where  his  entry  is  not  congeable,  and  ousteth  him  which 
hath  the  freehold."  Lord  Coke,  in  his  comment  on  this  passage, 
observes,  that  every  entry  is  not  a  disseisin,  unless  there  is  an 
ouster  of  the  freehold  ;  and  it  is  said  by  Mr.  Justice  Fortescue  in 
8  Geo.  1,  that  every  disseisin  is  a  trespass,  but  every  trespass  is 
not  a  disseisin.     A  disseisin  is  when  one  enters,  intending  to 

usurp  the  possession,  and  to  oust  another  of  the  freehold.2 
52  *      *  Therefore,  queer endum  est  a  judice  quo  animo  he  entered. 

(a)  Lit.  s.  396.     Gilb.  Ten.  28. 

Maine,  this  provision  is  extended  to  every  discontinuance  of  estate,  in  whatever  mode 
it  may  have  been  effected.  In  Kentucky,  by  Stat.  1798,  Rev.  St.  Vol.  I.  p.  582,  §  5, 
and  in  Mississippi,  by  Rev.  St.  ch.  91,  §  3,  the  provisions  of  St.  32  Hen.  8,  ch.  33, 
have  been  expressly  reenactcd,  by  which  five  years'  peaceable  possession  by  the  dis- 
seisor, before  descent  cast,  is  made  necessary,  in  order  to  oust  the  disseisee  of  his  right 
of  entry. 

1  The  doctrine  of  possessio  fralris,  in  the  law  of  descents,  is  generally  abrogated  in 
the  United  States,  (except  in  Maryland,  and  perhaps  in  North  Carolina,)  by  force  of 
the  statutes  of  descents  and  distributions,  which,  either  in  express  terms  or  by  broad 
and  general  language,  give  to  the  heir,  by  direct  descent,  all  the  ancestor's  rights  to 
real  property,  without  regard  to  the  question  whether  or  not  he  died  actually  seised. 
See  4  Kent,  Comm.  388—389 ;  2  Peters,  R.  625 ;  1  Rev.  St.  N;  Car.  ch.  38,  §  1 ;  1  Dor- 
sey's  LL.  Maryl.  p.  745. 

2  A  disseisor  is  defined  by  Mr.  Preston  to  be  "  a  person  who  acquires  a  seisin,  with- 
out any  title."     2  Preston  on  Abstracts  of  Title,  p.  388. 

[t  By  sect.  13  of  the  above  act,  it  is  enacted,  that  when  a  younger  brother,  or  other 
relation  of  the  person  entitled  as  heir  to  the  possession  or  receipt  of  the  profits  of  any 
land,  or  to  the  receipt  of  any  rent,  shall  enter  into  the  possession  or  receipt  thereof, 
such  possession  or  receipt  shall  not  be  deemed  to  be  the  possession  or  receipt  of  or  by  the 
person  entitled  as  heir.] 


Title  I.     Estate  in  Fee  Simple,  s.  32 — 34.  53 

To  make  an  entry  a  disseisin  there  must  be  an  ouster  of  the 
freehold,  either  first  by  taking  the  profits,  or  secondly  by  claim- 
ing the  inheritance.1  (a) 

33.  There  is  scarcely  a  subject  in  the  English  law  so  obscure 
as  that  of  disseisin.  The  full  effect  of  disseisins  must  formerly 
have  been  not  only  a  dispossessing  of  the  freeholder,  but  also  a 
substitution  of  the  disseisor,  as  tenant  to  the  lord ;  and  as  one 
of  the  pares  curice,  in  the  place  of  the  disseisee.  Now  as  the 
consent  of  the  lord  was  formerly  necessary  to  the  admission  of  a 
new  tenant  into  the  feud,  it  is  difficult  to  conceive  how  a  com- 
plete disseisin  could  take  place  without  the  consent  or  connivance 
of  the  lord. 

34.  Lord  Mansfield  has,  therefore,  justly  observed,  that  "  the 
precise  definition  of  what  constituted  a  disseisin,  which  made 
the  disseisor  the  tenant  to  the  demandant's  proecipe,  though  the 
right  owner's  entry  was  not  taken  away,  was  once  well  known, 
but  it  is  not  now  to  be  found.  The  more  we  read,  unless  we  are 
very  careful  to  distinguish,  the  more  we  shall  be  confounded  ;  for 
after  the  assize  of  novel  disseisin  f  was  introduced,  the  Legisla- 
ture by  many  acts  of  Parliament,  and  the  courts  of  law,  by  liberal 
constructions,  in  furtherance  of  justice,  extended  this  remedy,  for 
the  sake  of  the  owner,  to  every  trespass  or  injury  done  to  his  real 
property,  if  by  bringing  his  assize  he  thought  fit  to  admit  himself 
disseised."2  (b) 

(a)  8  Mod.  55.  (b)  Taylor  v.  Horde,  1  Burr.  R.  110. 


[  t  The  writ  of  a  novel  disseisin  is  abolished  by  Stat.  3  &  4  Will.  4,  c.  27,  s.  36,  after 
the  1st  of  June,  1835.] 

i  The  possession  of  the  disseisor  must  be  open,  notorious,  exclusive,  and  adverse  to 
the  title  of  the  owner.    Taylor  v.  Horde,  1  Burr.  110. 

2  In  the  United  States,  as  in  England,  two  kinds  of  disseisin  are  recognized  ;  namely, 
a  disseisin  in  spite  of  the  owner,  also  termed  a  disseisin  in  fact;  and  a  disseisin  by  the 
election  of  the  owner,  also  termed  a  disseisin  by  construction  of  law.  The  effect  o 
the  former  is  to  give  the  disseisor  an  absolute  title  in  fee,  against  all  the  world,  if  he  is 
suffered  to  remain  in  undisturbed  possession  of  the  land,  during  the  time  expressed  in 
the  statutes  of  limitation.  The  latter  is  created  by  acts  without  actual  force,  and  in 
themselves  equivocal,  and  not  necessarily  amounting  to  an  entire  and  immediate  ouster 
of  the  freehold,  but  which  the  owner  may,  if  he  pleases,  treat  as  usurpations  of  his  free- 
hold, for  the  sake  of  vindicating  his  title  by  an  action  at  law.  Such  is  the  case,  where 
a  tenant  for  life  or  years  makes  a  feoffment ;  Taylor  v.  Horde,  1  Burr.  60 ;  3  Price, 
598 ;  Miller  v.  Shackleford,  3  Dana,  K.  389  ;  or  where  a  tenant  at  will  makes  a  lease 
for  years;  Blunden  v.  Baugh,  Cro.  Car.  302  ;  or  where  a  lease  is  made  by  a  stranger, 

5* 


54  Title  I.     Estate  in  Fee  Simple,  s.  35. 

35.  Where  there  is  no  person  in  esse  in  whom  the  freehold  is 
vested,  it  is  said  to  be  in  abeyance,  that  is,  in  expectation,  re- 
membrance and  contemplation  of  the  law.     But  it  is  a  principle 


and  the  lessee  enters  under  it,  without  force.  Jcrritt  v.  Weare,  3  Price,  575.  In  these 
and  the  like  cases,  as  the  act  of  entry  is  equivocal,  and  may  be  either  a  trespass  or  a 
disseisin,  according-*to  the  intent,  the  law  will  not  permit  the  wrongdoer  to  qualify  his 
own  wrong,  and  explain  it  to  be  a  mere  trespass,  unless  the  owner  elects  so  to  consider 
it.  Prescott  v.  Nevers,  4  Mason,  R.  326—329.  And  see  Kicard  v.  Williams,  7  Wheat. 
60;  Robison  v.  Swett,  3  Greenl.  316;  Allen  v.  Holton,  20  Pick.  458,467;  Rogers  v. 
Joyce,  4  Greenl.  93  ;  White  v.  Reid,  2  Nott  &  M'Cord,  534.  To  constitute  a  disseisin 
of  the  former  class,  or  in  spite  of  the  owner,  the  act  must  be  an  unequivocal  act  of  owner- 
ship, open,  known,  exclusive,  adverse,  and  uninterrupted.  A  disseisin  of  this  kind  may 
be  made,  not  only  by  an  actual  and  forcible  turning  the  owner  out  of  possession,  but 
by  entering  unde$  a  conveyance  from  one  who  has  no  title  ;  Jackson  v.  Huntington,  5 
Peters,  R.  402  ;  by  any  entry  under  claim  or  color  of  title  ;  Ewingr.  Burnett,  11  Peters, 
R.  41 ;  Melvin  v.  Proprietors  of  Locks.  &c,  5  Met.  15  ;  [Hoag  v.  Wallace,  8  Poster  (N. 
H.)  547  ;  Whitney  v.  Prench,  25  Vt.  663  ;  Comins  v.  Comins,  21  Conn.  413  ;  Thomas 
v.  Kelly,  13  Ired.  269;  Abercrombie  v.  Baldwin,  15  Ala.  363  ;  Herbert  v.  Hanrick,  16 
Ala.  581  ;  House  v.  Palmer,  9  Geo.  497  ;  or  under  a  parol  gift,  Pope  v.  Henry,  24  Vt. 
(1  Deane)  560;  but  see  Comins  v.  Comins,  21  Conn.  413;  Clarke  v.  McClure,  10  Gratt. 
(Va.)  305  ;]  by  occupying  and  cultivating  it  under  claim  of  title  ;  Robinson  v.  Douglas, 
2  Aik.  364  ;  though  it  be  not  a  rightful  title  ;  Warren  v.  Childs,  1 1  Mass.  222  ;  Jackson 
v.  Newton,  18  Johns.  355;  [Wendell  v.  Moulton,  6  Foster  (N.  H.)  41  ;  Bogardus  v. 
Trinity  Church,  4  Sandf.  Ch.  633  ;]  such  as,  a  defective  levy  ;  Allen  v.  Thayer,  17  Mass. 
299  ;  Bigelow  v.  Jones,  10  Pick.  161  ;  or  be  merely  a  claim  of  an  exclusive  right  to 
possess.  Allyn  v.  Mather,  9  Conn.  R.  114;  see  Powle  v.  Ayer,  8  N.  Hamp.  60,  where 
disseisin  is  well  described. 

It  must  be  adverse  to  the  title  of  the  true  owner;  that  is,  utterly  inconsistent  with  his 
title,  and  with  an  express  or  tacit  denial  of  it.  Little  v.  Libby,  2  Greenl.  242 ;  Prench 
v.  Pearce,  8  Conn.  R.  440;  Small  v.  Proctor,  15  Mass.  495;  [Hoyc  v.  Swan,  5  Md. 
237 ;  Armstrong  v.  Risteau,  lb.  256 ;  Clarke  v.  McClure,  10  Gratt.  305  ;  and  must 
consist  of  an  occupancy  of  the  lands  in  good  faith,  and  under  the  belief  that  the  claim- 
ant has  a  good  title.  Woodward  v.  McReynolds,  1  Chand.  244.]  And  the  intent  so  to 
claim,  in  opposition  to  the  title  of  any  other,  must  be  clear;  for  otherwise,  it  will  be 
presumed  to  be  in  submission  to  the  title  of  the  true  owner.  Smith  v.  Burtis,  6  Johns. 
197;  Jackson  v.  Sharp,  9  Johns.  163;  Rung  v.  Shoneberger,  2  Watts,  23;  Gwinn  v. 
Jones,  2  Gill  &  Johns.  173;  Lund  v.  Parker,  3  N.  Hamp.  49  ;  [Pierson  v.  Turner,  2 
Carter  (Ind.)  123  ;  Lane  v.  Gould,  10  Barb.  Sup.  Ct.  254.]  The  intent  of  the  party  in 
taking  and  holding  possession,  is  a  fact  to  be  found  by  the  jury.  Athcrton  v.  Johnson, 
2  N.  Hamp.  31 ;  Dennett  v.  Crocker,  8  Greenl.  239  ;  Jenks  v.  Jay,  9  Johns.  102  ;  [Bev- 
erly v.  Burke,  9  Geo.  440;  Herbert  v.  Hanrick,  16  Ala.  581  ;  Woodward  v.  McRey- 
nolds, 1  Chand.  Wise.  244.]  His  declarations,  even  though  made  to  a  stranger,  are 
admissible  in  evidence  in  disparagement  of  his  claim ;  but  are  not  admissible  in  his 
own  favor,  to  prove  a  disseisin  against  the  owner,  unless  made  to  the  owner.  West 
Cambridge  v.  Lexington,  2  Pick.  536 ;  Church  v.  Burghartlt,  8  Pick.  327  ;  Little  v. 
Libby,  2  Greenl.  242  ;  Alden  v.  Gilmore,  1  Shepl.  178  ;  Crane  v.  Marshall,  4  Shepl.  27  ; 
Carter  v.  Gregory,  8  Pick.  168.  [There  can  be  no  adverse  possession  against  the  Com- 
monwealth ;  Koiner  v.  Rankin,  1 1  Gratt.  ( Va.)  420 ;  in  Massachusetts,  see  Rev.  St.  ch.  119, 


Title  I.     Estate  in  Fee  Simple,  s.  35.  55 

of  the  highest  antiquity  that  there  should  always  be  a  known 
and  particular  owner  of  every  freehold  estate,  so  that  it  should 
never,  if  possible,  be  in  abeyance.     This  rule  was  established  for 

§  12  •  St.  1852,  ch.  253.  Adverse  possession  is  not  affected  by  a  sale  of  the  premises  on 
execution  against  the  owner.  7  Rich.  S.  C.  509.]  Whether  an  occupancy  by  mistake, 
and  through  misapprehension  of  the  dividing  line,  amounts  to  a  disseisin,  is  a  point  not 
prefectly  agreed.  In  Maine  and  in  Tennessee  it  has  been  held  no  disseisin.  Brown  v. 
Gay,  3  Greenl.  126;  Ross  v.  Gould,  5  Greenl.  204;  [Lincoln  v.  Edgecomb,  31  Maine, 
306  :]  Gates  v.  Butler,  3  Humphrey,  R.  447.  In  Connecticut  and  in  Pennsylvania  it  is 
held  otherwise  ;  French  v.  Pearce,  8  Conn.  440,  445,  446  ;  Jones  v.  Porter,  3  Penn.  R. 
132  ;  on  the  ground  that,  in  order  to  be  an  adverse  possession,  it  is  sufficient  that  the 
party  intended  to  claim  the  land  as  exclusively  and  absolutely  his  own  estate,  and 
actually  and  visibly  occupied  it  as  such,  receiving  the  profits  to  his  own  use,  without 
any  supposed  or  assumed  accountability  ;  and  that  this  may  well  be  the  case  without 
any  knowledge  or  suspicion  of  any  other  title  or  claim.  Melvin  r.  Proprietors  of  Locks, 
&c,  5  Met.  15,  33.  See  also  Parker  v.  Proprietors  of  Locks,  &c,  3  Met.  100,  101  ; 
Hale  v.  Glidden,  10  N.  Hamp.  397.  In  Maine  also,  if  the  grantor,  by  mistake, 
conveys  a  larger  tract  than  he  owns,  and  the  grantee  enters  and  actually  occupies 
according  to  his  deed,  it  is  held  that  the  grantee  thereby  disseises  the  true  own- 
er ;  though  the  rule,  that  occupation  by  mistake  is  no  disseisin,  is  in  such  case  ap- 
plicable to  the  grantor.  Otis  v.  Moulton,  2  Applet.  205.  But  to  constitute  a  disseisin 
by  the  grantee,  in  such  case  of  occupancy  by  mistake,  the  occupancy  must  be  actual 
and  visible ;  for  his  entry  will  not  be  extended  by  mere  construction,  beyond  the 
limits  of  his  title.     Enfield  v.  Day,  7  N.  Hamp.  457,  467  ;  Hale  v.  Glidden,  supra. 

In  general,  if  the  tenant  has  a  legal  right  to  hold  the  possession,  such  as  to  flow  the 
land,  or  to  use  a  dock,  he  shall  be  conclusively  presumed  to  hold  under  that  title, 
and  shall  not  be  permitted  to  say  that  he  holds  by  wrong,  or  against  the  general  owner. 
Tinkham  v.  Arnold,  3  Greenl.   120;   Parker  v.  Proprietors  of  Locks,  &c,  3  Met.  99. 
But  if  he  takes  exclusive  possession  of  the  land,  against  the  will  of  the  lessor,  as,  if  he 
builds  a  wharf  upon  the  dock,  it  is  a  disseisin.     Tyler  v.  Hammond,  11  Pick.  193.    So, 
if  he  remains  in  as  tenant  by  sufferance,  it  is  no  disseisin.    Doe  v,  Hull,  2  D.  &  R.  38. 
But  if  the  disseisor  demises  the  land,  and  his  tenant  holds  over  by  sufferance  after  the 
death  of  the  disseisor,  this  is  a  continuance  of  the  disseisin.    Melvin  v.  Proprietors  of 
Locks,  &c,  5  Met.  15,  33.     [So  where  a  person  enters  on  land  owned  by  two  as  ten- 
ants in  common,  by  license  of  one  of  them,  and  erects  and  occupies  a  building  thereon, 
he  is  considered  as  holding  in  submission  to  their  title  until  the  contrary  is  shown. 
Buckman  v.  Buckman,  30  Maine,  17  Shep.  494;   and  where  two  have  real  estate  set 
off  to  them  jointly,  the  possession  of  one  claiming  the  whole,  is  not  adverse  to  that  of 
the  other.    Brooks  v.  Towle,  14  N.  H.  248.    Possession  under  the  deed  of  a  married 
woman,  the  deed  being  void,  is  adverse  to  her  title.    Matthews  v.  Puffer,  19  N.  H. 
(7  Foster)  448.]     If  a  vendee  enters  under  an  agreement  for  the  purchase,  the  money 
not  being  paid,  his  possession  is  no  disseisin,  it  being  in  submission  to  the  vendor's 
title,  and  by  his  consent;  and  if  he  afterwards  buys  up  an  adverse  claim,  this  does  not 
change  the  character  of  his  possession  and  render  it  adverse .    But  if  the  purchase- 
money  has  been  paid,  and  the  vendee  is  entitled  to  a  deed  of  conveyance,  which  the 
vendor  has  agreed  to  give,  and  consents  to  the  entry  of  the  vendee;  his  possession  is 
thenceforth  adverse,  and  a  disseisin  of  the  vendor.     Brown  v.  King,  5  Met.  173  ;  Hjg- 
ginbottom  v.  Fishback,  1  A.  K.  Marsh.  506  ;  Daniel  v.  Ellis,  Ibid.  60.    And  see  Win- 
terbottom  v.  Ingham,  10  Jur.  4  ;    [Maltonner  v.  Dimmick,  4  Barb.  Sup.  Ct.  566  ; 


56  Title  I.     Estate  in  Fee  Simple,  s.  35. 

two  reasons  :  —  1.  That  the  superior  lord  might  know  on  whom 
he  was  to  call  for  the  military  services  that  were  due  for  the 
feud ;  otherwise  the  defence  of  the  realm  would  have  been  con- 


Fosgate  V.  The  Herkimer  M.  &  H.  Co.  12  lb.  352;  Stamper  v.  Griffin,  12  Geo.  450; 
Gray  v.  Hutchins,  36  Maine,  142.] 

The  possession  must  also  be  open,  visible,  and  exclusive,  so  that  it  may  be  known 
to  the  true  owner.  Therefore  the  running  of  lines  round  the  land  by  a  surveyor,  and 
marking  them  ;  or  the  occasional  cutting  of  the  grass  ;  Kennebec  Purchase  v.  Springer, 
4  Mass.  416  ;  or  the  execution  and  delivery  and  registration  of  a  deed  of  wild  land,  and 
a  formal  entry  under  it  by  the  grantee,  without  an  open  and  exclusive  possession, 
manifested  by  fences  or  otherwise,  are  not  sufficient  to  constitute  an  actual  disseisin. 
Bates  v.  Norcross,  14  Pick.  224.  Nor  is  the  making  of  a  fence  on  wild  land,  by  felling 
trees  in  a  line,  lapping  one  upon  another,  sufficient  for  this  purpose.  Coburn  v.  Hollis, 
3  Met.  125  ;  2  Greenl.  on  Evid.  §  557,  and  cases  there  cited.  [Acts  of  occupation  of  open 
and  unenclosed  woodland,  by  cutting  wood  and  timber  for  use  and  for  sale,  the  cutting 
off  at  one  time  of  all  the  wood  and  timber  standing  on  the  premises,  the  clearing  of  a 
small  portion  for  the  purpose  of  cultivation,  the  sale  of  a  part  of  the  premises,  the  run- 
ning of  a  line  between  the  premises  and  other  lands  of  the  owner  by  documentary  and 
record  title,  and  the  marking  of  the  line  run  by  lopping  trees,  although  these  acts  were 
within  the  knowledge  of  the  owner,  were  held  not  to  disseise  the  owner,  there  being  no 
evidence  showing  the  enclosure  of  the  land  by  fences,  the  building  upon  it,  or  cultivat- 
ing it.  Slater  et  al.  v.  Jepherson,  6  Cush.  129.]  If  the  occupancy  is  not  necessarily, 
and  in  its  nature  adverse,  it  may  become  and  be  shown  to  be  adverse  by  a  declaration 
to  that  effect,  made  by  the  occupant  to  the  true  owner  as  above  stated ;  but  not  if  made 
to  a  stranger.  Notice  to  the  owner  is  conclusively  presumed  against  him,  where  the 
acts  done  are  of  such  a  character  as  clearly  to  disclose  the  fact  and  the  extent  of  the 
possessor's  occupancy,  and  his  exclusive  exercise  of  dominion  over  the  land,  and  ap- 
propriation of  it  to  his  own  use.  Kennebec  Purchase  v.  Laboree,  2  Greenl.  275,  283, 
284 ;  Kennebec  Purchase  v.  Call,  1  Mass.  483  ;  2  Greenl.  on  Evid.  §  557,  and  cases 
there  cited.  What  acts  are  sufficient  to  raise  this  presumption  of  notice,  is  a  point  that 
has  been  much  disputed.  It  is,  however,  settled,  that  acts  of  notoriety,  such  as  build- 
ing a  fence  round  the  land,  or  erecting  buildings  upon  it,  are  notice  to  all  the  world. 
Poignard  v.  Smith,  6  Pick.  172,  178.  Yet  the  erection  of  a  fence  is  not  held  indispen- 
sable to  constitute  an  adverse  possession  ;  it  is  nothing  more  than  an  act  presumptive 
of  an  intention  to  assert  title  ;  of  which  intention,  many  other  acts  are  equally  evincive  ; 
such  as  entering  upon  the  land  and  making  improvements,  raising  a  crop  of  corn,  fell- 
ing and  selling  the  trees  thereon,  and  the  like,  under  color  of  title.  Ellicott  v.  Pearl, 
10  Peters,  R.  442  ;  Ewing  v.  Burnet,  11  Peters,  R.  52,  53.  And  neither  actual  occu- 
pation, cultivation  nor  residence  are  necessary  to  constitute  actual  possession,  where 
the  property  is  so  situated  as  not  to  admit  of  any  permanent  useful  improvement,  and 
the  continued  claim  of  the  party  has  been  evinced  by  public  acts  of  ownership,  such  as 
he  would  exercise  over  property  which  he  claimed  in  his  own  right,  and  would  not 
exercise  over  property  which  he  did  not  claim.  Ibid.  [Wallace  v.  Maxwell,  10  Ired. 
110;  Lenoir  v.  South,  lb.  237  ;  Wickliffe  v.  Ensor,  9  B.  M.  253;  Stephens  v.  Leach, 
19  Penn.  (7  Harris)  262;  see  Wood  v.  McGuire,  15  Geo.  202.] 

An  entry  into  a  tract  of  land,  under  a  deed,  describing  the  same  by  specific  metes 
and  bounds  and  duly  registered,  gives  the  party  a  constructive  possession  of  the  whole 
tract,  if  there  be  no  actual  adverse  possession  ;  and  is  a  disseisin  of  all  persons  claim- 


Title  I.     Estate  in  Fee  Simple,  s.  35.  57 

siderably  weakened.  2.  That  every  stranger,  who  claimed  a 
right  to  any  particular  lands,  might  know  against  whom  he 
ought  to  bring  his  praecipe  for  the  recovery  of  them  ;  as  no  real 

ing  title  to  the  same  land,  to  the  extent  of  the  boundaries  meniioned  in  the  deed.  Elli- 
cott  v.  Pearl,  10  Peters,  R.  442;  Prescott  v.  Nevers,  4  Mason,  R.  326:  [Foxcroft  v. 
Barnes,  29  Maine  (16  Shep.)  128;  Putnam  Free  Sehool  v.  Fisher,  34  Maine  (4  Red.) 
177;  Massengill  v.Boyles,  11  Humph.  112;  Furnley  v.  Chamberlain,  15  Dl.  271  ;]  War- 
ren v.  Child,  11  Mass.  222;  Kennebec  Purchase  p.  Laboree,  2  Greenl.  275  ;  McCall  v. 
Neely,  3  Watts.  69  ;  Miller  v.  Shaw,  7  S.  &  R.  129  ;  [nor  for  this  purpose  is  it  neces- 
sary that  the  deed  under  which  he  enters,  be  recorded.  Spaulding  v.  Warren,  25  Vt. 
(2  Deane)  316.  See  also  Brown  v.  Edson,  22  Vt.  357 ;  Chandler  v.  Spear,  22  Vt. 
388  ;  and  as  well  without  written  claim  of  title  as  with  it.  Buck  v.  Squicrs,  23  Vt. 
(8  Washb.)  498;  sec  Lane  v.  Gould,  10  Barb.  Sup.  Ct.  254;]  and  this,  whether  the 
title  by  the  deed  was  valid,  or  defective  and  void.  Clarke  v.  Courtenay,  5  Peters,  R. 
319  ;  Thomas  v.  Harrow,  4  Bibb.  563.  [Unless  there  is  actual  occupation  of  some  por- 
tion of  the  premises  by  the  grantee  under  a  recorded  deed,  the  real  owner  is  not  dis- 
seised thereby.  Putnam  Free  School  v.  Fisher,  38  Maine  (3  Heath)  324.]  But  if  the 
true  owner  is  at  the  same  time  in  actual  possession  of  part  of  the  land,  claiming  title  to 
the  whole,  then  his  seisin  extends  by  construction  over  the  whole  tract;  and  he  is  dis- 
seised only  to  the  extent  of  the  actual,  visible,  and  adverse  possession  of  him  who 
enters  under  such  deed;  Ibid.;  Hall  v.  Powell,  4  S.  &  R.  456  ;  Gonzalus  v.  Hoover, 
6  S.  &  R.  118  ;  Green  v.  Liter,  8  Cranch,  229,  230.  [Putnam  Free  School  v.  Fisher, 
34  Maine  (4  Red.)  177.]  And  see  Brimmer  v.  Long  Wharf,  5  Pick.  131;  Riley  v. 
Jameson,  3  N.  Hamp.  23  ;  Davidson  v.  Beatty,  3  Har.  &  McHen.  594 ;  Higbee  v.  Rice, 
5  Mass.  345. 

The  possession,  moreover,  must  be  continued,  without  interruption  or  abandonment; 
for  otherwise,  it  is  no  longer  a  disseisin,  and  the  owner  will  be  again  seised.  Little  v. 
Megquier,  2  Greenl.  176;  Small  v.  Proctor,  15  Mass.  495;  Jones  v.  Chiles,  2  Dana, 
25  ;  Ewing  v.  Burnet,  11  Peters,  R.  53.  [Winthrop  v.  Benson,  31  Maine,  1  Red.  381 ; 
Poor  v.  Horton,  15  Barb.  Sup.  Ct.  85;  Cleveland  v.  Jones,  3  Strobh.  479,  note.] 

In  some  of  the  United  States,  the  possession,  which  shall  constitute  a  disseisin, 
within  the  meaning  of  the  statutes  of  limitation,  and  of  betterments,  so  called,  has 
been  defined  by  positive  law.  Thus,  in  Maine,  it  is  enacted  that  the  possession  shall  be 
deemed  sufficient,  though  the  land  "  be  not  surrounded  wholly  by  a  fence,  or,rendered 
inaccessible  by  other  obstructions,  if  such  possession  and  improvement  shall  have  been 
open,  notorious,  and  exclusive,  and  comporting  with  the  usual  management  and  im- 
provement of  a  farm  by  its  owner,  and  though  a  portion  of  it  be  woodland  and  unculti- 
vated." Maine  Rev.  St.  ch.  145,  §  42  ;  2  Greenl.  275.  In  Michigan,  (Rev.  St.  Part  3, 
tit.  3.  ch.  2,  §  49,)  the  possession,  to  entitle  the  party  to  the  value  of  his  lasting  im- 
provements, must  be  "under  circumstances  affording  a  presumption  of  title."  See  also 
Mississippi  Rev.  St.  ch.  47,  §  15.  In  New  Jersey,  an  actual  and  continued  possession, 
under  purchase  from  one  in  the  actual  occupancy  of  the  land,  and  supposed  to  have  a 
legal  title  thereto,  is  made  sufficient  to  the  extent  of  the  description  in  the  deed,  against 
all  prior  grants  and  titles  not  followed  by  actual  possession.  Elmer's  Digest,  p.  314. 
In  New  York;  an  adverse  possession,  by  one  claiming  title  under  some  written  instru- 
ment, or  some  judgment  or  decree,  is  deemed  to  exist  in  land  which  the  party  has 
usually  cultivated  or  improved;  —  or  has  protected  by  a  substantial  enclosure  ;  —  or, 
though  not  enclosed,  has  used  for  the  supply  of  fuel,  or  of  fencing  timber,  for  the  pur- 
poses of  husbandry  or  for  the  ordinary  use  of  the  occupant.    And  if  a  known  farm  or 


58  Title  I.     Estate  in  Fee  Simple,  s.  35 — 37. 

*  53       *  action  could  be  brought  against   any  person   but  the 
actual  freeholder,  (a) 

36.  In  consequence  of  this  doctrine,  it  is  a  rule  that  a  free- 
hold estate  cannot  [by  any  conveyance  operating  at  common 
law]  be  created  to  commence  in  futuro,  except  by  way  of  re- 
mainder ;  because  in  that  case  the  freehold  would  be  in  abey- 
ance, from  the  execution  of  the  conveyance  to  the  moment  when 
the  estate  created  was  to  commence.  [But  by  executory  devise 
and  conveyances  operating  by  virtue  of  the  statute  of  uses,  free- 
hold estates  may  be  limited  so  as  to  commence  in  futuro;  and 
in  such  cases  the  freehold  does  not  continue  in  abeyance ;  for 
until  the  estates  so  limited  take  effect,  in  the  case  of  devise,  it 
descends  to  the  heir  at  law  of  the  testator,  and  in  that  of  a  deed, 
results  to  or  remains  in  the  grantor.]  1  (fr) 

37.  One  of  the  few  instances  in  which  a  freehold  estate  can  be 
in  abeyance  is,  where  the  parson  of  a  church  or  other  ecclesias- 
tical person  dies  ;  for  in  that  case  the  glebe,  &c,  is  in  abeyance, 
till  a  successor  is  appointed.2  (c) 

(o)  1  Inst.  342.  b. 

(&)  1  Inst.  217.  a.     5  Rep.  94.  b.     1  Lut.  795.     4  Taunt.  20.    Fearne,  Eem.  351. 

(c)  Lit.  s.  647.     (Hob.  338.     2  Roll.  Abr.  502.) 

single  lot  lias  been  partly  thus  improved,  the  portion  remaining  uninclosed,  according 
to  the  custom  of  the  country,  is  deemed  to  have  been  sufficiently  possessed,  contempo- 
raneously with  the  other.  But  where  the  occupant  does  not  claim  under  any  written 
instrument,  judgment,  or  decree,  his  possession  is  not  sufficient,  unless  the  land  has  been 
cither  protected  by  a  substantial  enclosure — or  usually  cultivated  or  improved.  Eev.  St. 
N.  York,  1846,  Vol.  II.  p.  392,  393,  §  10,  11,  12.  See  2  Smith's  Lead.  Cas.  413-416, 
Wallace's  note. 

A  disseisin  of  flats  may  be  made  by  entering  upon  and  filling  them  up,  or  by 
building  a  wharf  and  using  the  flats  adjoining  for  laying  vessels  at  the  same,  but  the 
entering  upon  uninclosed  flats,  when  covered  by  the  tide,  sailing  over  them  for 
the  ordinary  purposes  of  navigation,  or  anchoring  on  them,  does  not  constitute  a  dis- 
seisin. Wheeler  v.  Stone,  1  Cush.  313;  Drake  v.  Curtis,  lb.  395.  See  also  Treat  v. 
Chipman.  35  Maine  (5  Red.)  34.  For  cases  touching  the  tacking  together  of  the  pos- 
sessions of  disseisors,  see  Reed  v.  Locks  and  Canals,  8  How.  U.  S.  274;  Chilton  v. 
Wilson,  9  Humph.  399;  Bullen  v.  Arnold,  31  Maine,  583.] 

1  See  Buckler's  case,  2  Co.  55  a,  and  cases  in  1  Hoflfm.  Course,  p.  191.  Post,  Vol. 
IV  p.  71  [48]  and  Vol.  VI.  p.  [377]  note. 

2  See  accordingly,  Terrett  v.  Taylor,  9  Cranch,  47 ;  Pawlet  v.  Clark,  Ibid.  293 ; 
AVeston  v.  Hunt,  2  Mass.  500 ;  Brunswick  v.  Dunning,  7  Mass.  445  ;  Brown  v.  Porter, 
10  Mass.  93  ;  Cheever  v.  Pearson,  16  Pick.  266.  But  if  a  grant  for  charitable  uses  is 
made  to  a  person  or  corporation  not  in  esse,  the  right  or  property  granted  remains  in 
the  grantor  until  the  grantee  comes  into  existence,  and  then  it  attaches  to  the  grantee. 
Shapleigh  v.  Pilsbury,  1  Greenl.  271,  286—289;    Rice  v.  Osgood,  9  Mass.  38;  Dart. 


Title  I.     Estate  in  Fee  Simple,  s.  38—39.  59 

38.  All  natural  persons  born  within  the  dominions  of  the 
crown  of  England,  are  capable  of  holding-  freehold  estates  ;  unless 
they  are  attainted  of  treason  or  felony,  or  have  incurred  the  pen- 
alties of  a  prcemunire ;  for  in  those  cases  they  are  considered 
as  civilly  dead,  and  therefore  incapable  of  possessing  any  real 
property. 

39.  Aliens,  that  is,  persons  born  out  of  the  dominions  of  the 
crown  of  England,  except  the  children  and  grandchildren  of 
natural  born  subjects,  are  incapable  of  holding  freehold  estates 
for  their  own  benefit ;  unless  they  are  naturalized  by  act  of  par- 
liament, or  made  denizens  by  the  king's  letters -patent.1  (a) 

(a)  1  Inst.  2  b.     Tit.  29.  c.  2. 

mouth  College  v.  Woodward,  4  Wheat.  691.    See  Mr.  Hoffman's  note  on  Abeyance, 
I  Hoffm.  Course,  243. 

1  Aliens  are  expressly  made  capable  of  taking,  holding,  and  transmitting  lands, 
without  residence,  or  other  condition,  in  the  States  of  Ohio,  Michigan  and  Illinois.  (See 
Ohio  Rev.  St.  1841,  ch.  3;  Michigan  Rev.  St.  1837-8,  p.  266,  §  26;  Illinois  Rev.  St. 
1833,  p.  626,  §  38,)  [and  in  Massachusetts,  St.  1852,  ch.  29.]  In  other  States,  they  are 
habilitated  upon  conditions,  or  with  modifications.  Thus,  residence  in  the  State  is 
required  in  New  Hampshire,  (Rev.  St.  ch.  129,  §  4,)  and  in  Missouri,  (Rev.  St.  1845, 
ch.  6.)  Residence  and  the  oath  of  allegiance  are  required,  by  the  Constitutions  of  Ver- 
mont, (§  39,)  and  of  North  Carolina,  (§  40,)  and  by  a  statute  of  South  Carolina,  (Stat. 
1799,  1  Brevard,  Dig.  236  ;)  Vaux  v.  Nesbit,  1  McCord,  Ch.  R.  362.  In  New  Jersey, 
it  is  required  that  he  be  an  alien  friend  at  the  time  of  taking.  (Elmer's  Dig.  p.  6, 
Stat.  March  13,  1845.)  So  it  is  in  Pennsylvania;  but  his  right  to  hold  by  purchase, 
and  transmit  to  heirs,  is  restricted  to  5,000  acres;  (Stat.  March  24,  L818,  Purdon's 
Dig.  p.  57 ;)  though  the  right  to  take  and  hold  by  descent,  which  is  given  by  an 
earlier  statute,  is  without  restriction.  (Stat.  Feb.  23,  1791,  Purdon's  Dig.  56.)  A 
previous  declaration  of  intention  to  become  a  naturalized  citizen,  pursuant  to  the 
statutes  of  the  United  States,  is  required  by  the  laws  of  Connecticut,  Maine,  Dela- 
ware, Maryland,  Virginia,  Tennessee,  Arkansas,  Indiana,  Missouri.  In  Connecticut,  a 
residence  of  one  year  in  the  State  is  also  a  prerequisite;  (Stat.  1845,  ch.  3;)  but 
a  special  capacity  may  be  granted  by  Chancery,  after  a  residence  of  six  months. 
(Rev.  St.  1838,  tit.  36.)  In  Delaware,  (Rev.  St.  1829,  p.  S3,  202,)  and  in  Ten- 
nessee, (Stat.  1839,  ch.  35,  §  I,)  and  in  Indiana,  (Rev.  St.  1843,  p.  414,)  residence 
in  the  State  is  required,  but  without  any  definite  time.  In  Missouri,  (Rev.  St.  1845, 
ch.  6,)  it  is  sufficient  if  the  party  is  resident  in  the  United  States.  In  Arkansas,  (Rev. 
St.  1837,  ch.  7,  §  1,)  residence  in  the  State  is  required,  in  order  to  take  by  purchase  ; 
but  residence  elsewhere  in  the  United  States  is  sufficient,  in  order  to  transmit  by 
descent.  In  Maine,  (Rev.  St.  ch.  91,  §  2  ;  ch.  93,  §  5,  6,  7) ;  Maryland,  (Stat.  1814, 
ch.  79,  1  Dorsey's  ed.  625)  ;  and  Virginia,  (Stat.  1813,  ch.  25,  Tate's  Dig.  p.  24,)  the 
title  is  not  complete  unless  the  party's  naturalization  is  subsequently  completed.  Put 
in  Maine,  his  heirs  may  take  by  descent,  if  the  ancestor  dies  before  the  time  for  being 
naturalized  has  arrived.  In  New  York;  an  alien  resident  any  where  within  the  United 
States,  is  enabled  to  take  and  hold,  in  fee,  and  to  sell,  assign,  mortgage,  and  devise 
real  estate,  but  not  to  lease  or  demise  the  same,  provided  he  shall  have  made  oath, 


60  Title  I.     Estate  in  Fee  Simple,  s.  40. 

40.  Bodies  corporate,  whether  sole  or  aggregate,  ecclesiastical 
or  lay,  may  hold  those  freehold  estates  that  have  been  transmitted 
to  them  by  their  predecessors.  They  are,  however,  prohibited 
by  several  ancient  and  modern  laws,  usually  called  the  statutes 
of  mortmain,  from  purchasing  more  lands,  without  a  license  from 
the  crown.  But  the  power  of  suspending  statutes  by  legal 
authority  only,  being  declared  illegal  at  the  Revolution,  it  was 
deemed  prudent  to  give  a  parliamentary  sanction  to  licenses  in 
mortmain.  This  was  done  by  the  Statute  7  &  8  Wm.  3,  c.  37, 
by  which  it  was  enacted  that  it  should  be  lawful  for  the  king, 
his  heirs  and  successors,  to  grant  to  any  person  or  persons,  bodies 

politic  or  corporate,  their  heirs  and  successors,  licenses  to 
*54       *  alien  in  mortmain,  and  also  to  purchase,  acquire,  take, 

and  hold   in   mortmain,  in  perpetuity  or  otherwise,  any 


before  any  officer  authorized  to  take  proof  of  deeds,  that  he  is  a  resident  of,  and  intends 
always  to  reside  in,  the  United  States,  and  to  become  a  citizen  thereof  as  soon  as  he 
can  be  naturalized ;  and  that  he  has  taken  the  incipient  measures  required  by  law  for 
that  purpose ;  which  deposition  must  be  filed  in  the  office  of  the  Secretary  of  State. 
This  power  to  aliene  and  convey  is  to  continue  for  six  years  after  making  and  filing 
such  deposition.  But  no  such  alien  can  take  or  hold  lands  descended,  devised,  or  con- 
veyed to  him  previous  to  his  having  become  a  resident  of  the  United  States,  and  hav- 
ing made  the  above-mentioned  deposition.  And  if  he  dies  within  the  six  years,  his 
heirs,  being  inhabitants  of  the  United  States,  may  take  by  descent  as  though  they 
were  citizens.  N.  Y.  Kev.  Stat.  1846,  Vol.  II.  p.  4.  §  16,  17,  18,  19.  And  by  a  subse- 
quent statute,  any  alien  resident  in  the  Slate  of  New  York,  on  making  and  filing  the  oath 
above  mentioned,  is  rendered  fully  capable  of  taking,  holding,  and  conveying  real 
estate,  as  a  citizen.  Ibid.  p.  5,  6,  §  26—37.  And  see  2  Kent,  Comm.  69,  79.  Post, 
tit.  32,  ch.  2,  §  32.  Tit.  29,  ch.  2,  §  12.]  Under  these  statutes,  the  widow  of  an  alien 
grantee  is  considered  as  a  purchaser,  and  therefore  is  entitled  to  dower.  Sutliff  v.  For- 
ney, 1  Cowen,  89;  5  Cowen,  713;  Priest  v.  Cummings,  16  Wend.  617. 

An  alien,  not  otherwise  entitled  to  hold  land,  acquires  no  life-estate  in  the  land  of  his 
wife,  by  matriage;  and  a  levy  thereon,  as  the  estate  of  the  husband,  gives  no  title  to 
the  creditor  or  to  the  purchaser  at  a  sheriff's  sale.     Mussey  v.  Pierre,  11  Shepl.  559. 

[The  right  of  aliens  to  hold  real  estate  in  Vermont  was  considered  in  State  v.  Boston, 
C.  &  M.  11.  R.  Co.  25  Vt.  433.  In  the  New  York  statute  regulating  descents,  the 
alienism  of  the  ancestor  embraces  collaterals  as  well  as  lineals.  McCarthy  v.  Marsh, 
1  Selden,  263.  For  other  decisions  respecting  the  rights  of  aliens  to  take  and  transmit 
lands,  see  Btpwn  v.  Sprague,  5  Denio,  545  ;  Leefe's  case,  4  Edw.  ch.  395  ;  Redpath  v. 
Rich,  3  Sandf.  Sup.  Ct.  79  ;  Beck  v.  McGillis,  9  Barb.  Sup.  Ct.  35  ;  Duke  of  Cumber- 
land v.  Graves,  lb.  595  ;  S.  C.  3  Selden,  305  ;  Atkins  v.  Kron,  5  Ired.  Eq.  207  ;  Cope- 
land  v.  Sands,  I  Jones's  Law,  70;  McCaw  v.  Galbraith,  7  Rich.  S.  C.  74 ;  Ford  v.  Hus- 
man  lb.  165  ;  Keenan  v.  Keenan,  lb.  345  ;  18  Ala.  565  ;  1  Tex.  673  ;  3  lb.  349  ;  5  lb. 
211-  Starks  v.  Traynor,  11  Humph.  292;  State  v.  Beackmo,  8  Blackf.  246;  Ex  parte 
Smith,  lb.  395  ;  Huddlcston  v.  Lazenby,  1  Smith,  203 :  S.  C.  1  Carter,  234  ;  Greenia  v. 
Greenia,  14  Mis.  526.] 


Title  I.     Estate  in  Fee  Simple,  s.  40—42.  61 

lands,  tenements,  rents,  or  hereditaments  whatsoever.  [So  that 
although  the  capacity  to  purchase  is  at  common  law  incident  to 
lay  corporations,  yet  it  seems  to  be  now  settled  that  they  must 
have  a  license  from  the  crown  before  they  can  exert  that  capacity 
to  purchase.1  And  having  this  capacity  to  take,  it  would  seem 
that  corporations,  being  absolutely  entitled,  have  an  incident 
power  of  alienation.]  (a) 

41.  It  was  formerly  the  practice,  before  a  license  of  mortmain 
was  granted,  to  sue  out  a  writ  of  quod  damnum,  in  order  to  as- 
certain whether  such  a  license  would  be  prejudicial  to  the  king 
or  others.  But  Mr.  Hargrave  says  he  was  well  informed  that 
writs  of  this  kind  had  not  been  usual  on  granting  mortmain 
licenses  since  the  Statute  7  &  8  Wm.  3.  (b) 

42.  Estates  of  freehold  are  either  estates  of  inheritance,  or  not 
of  inheritance.  The  former  are  again  divided  into  inheritances 
absolute,  or  fee  simple  ;  and  inheritances  limited  ;  one  species  of 
which  is  called  fee  tail. 

"  Tenant  in  fee  simple  (says  Littleton,  s.  1,)  is  he  which  hath 
lands  or  tenements  to  hold  to  him  and  his  heirs  forever.  And 
it  is  called  in  Latin  feodum  simplex  ;  for  feodum  is  the  same  that 

(a)  Tit.  32.  c.  2.     1  Inst.  99.  a.  n.  1.     Tit.  32.  c.  2.     Co.  Lit.  2.  b.     Com.  Dig.   tit.  Fran- 
chise F.  15.  17.     1  Bl.  Com.  479.    Com.  Dig.    lb.  F.  (18.)     Sid.  162.     Plow.  538. 

(b)  1  Inst.  99.  a.  n.  1. 


1  In  Pennsylvania,  all  lands  conveyed  to  a  corporation,  or  to  another  for  its  use  or  in 
trust  for  its  benefit,  without  the  license  of  the  commonwealth,  are  forfeited  to  the  com- 
monwealth, as  in  the  case  of  an  escheat  for  want  of  heirs.  Stat.  Apr.  6,  1833,  §  1. 
But  the  title  of  the  corporation,  whether  foreign  or  domestic,  is  valid  until  office 
found.  Runyan  v.  Coster,  14  Peters,  R.  122.  In  the  other  States,  it  is  understood  that 
the  English  statutes  of  mortmain  have  not  been  reenacted  or  practised  upon  ;  and  the 
inference  from  the  statutes  creating  corporations,  and  authorizing  them  to  hold  real 
estate  to  a  limited  extent,  is,  that  such  corporation  cannot  hold  real  estate  for  any  pur- 
poses foreign  to  those  of  their  institution.  2  Kent,  Comm.  283  ;  Jackson  r.  HartweU, 
8  Johns.  422  ;  Sutton  v.  Cole.  3  Pick.  232.  But  for  purposes  not  foreign  to  their  insti- 
tution, corporations  created  by  statute,  may  hold  any  property  within  the  limits  of  value 
prescribed  by  statute.  All  other  lay  corporations  not  thus  restricted,  have,  as  incident 
to  their  existence,  the  power  to  purchase  and  hold  lands  at  their  discretion.  Angell  & 
Ames  on  Corporations,  ch.  5 ;  Phillips  Academy  v.  King,  12  Mass.  54G ;  Vidal  v.  Girard's 
Exrs.,  2  How.  S.  C.  R.  127.  And  it  seems  that  a  corporation  created  in  one  State  may 
hold  lands  in  another,  if  within  the  limits  of  the  powers  granted  to  it  by  the  laws  of  its 
own  State.  2  Kent,  Comm.  283  ;  Runyan  v.  Coster,  14  Peters,  R.  122  ;  Lathrop  v. 
The  Bank  of  Scioto,  8  Dana,  114.  And  see  Bank  of  Augusta  v.  Earle,  13  Peters, 
R.  584. 

VOL.    I.  6 


62  Title  I.     Estate  in  Fee  Simple,  s.  42 — 45. 

inheritance  is,  and  simplex  is  as  much  as  to  say  lawful  or  pure  ; 
and  so  feodum  simplex  signifies  a  lawful  or  pure  inheritance. 

43.  Littleton  has  been  censured  for  annexing  an  improper 
meaning  to  the  word  feodum  in  his  definition ;  and  it  has  been 
contended  that  the  word  signifies  land  holden  of  a  superior  lord 
by  military  or  other  services.  But  although  this  was  certainly 
the  original  meaning  of  the  word,  yet  when  the  feudal  law  was 
fully  established  here,  and  it  was  universally  acknowledged  that 
all  the  lands  in  England  were  held  mediately  or  immediately  of 
the  crown,  the  word  feodum,  or  fee,  became  generally  used  to 
denote  the  quantity  of  estate  or  interest  in  the  land.  Thus  it 
appears  from  Bracton,  that  the  word  feodum  was  then  often  used 
in  both  these  senses.  Et  sciendum  quod  feodum  est  id  quod  quis 
tenet,  ex  qudcunque  causd,  sibi  et  hceredibus  suis.  Item  dicitur 
feodum  alio  modo  ejus  qui  alium  feoff  at,  et  quod  quis  tenet  ab  alio : 
ut  si  sit  qui  dicat,  Talis  tenet  de  me  tot  feodo  per  servitium  mili- 
tare.  And  it  is  evidently  for  the  purpose  of  denoting  the  quan- 
tity of  interest,  that  the  word  feodum  is  used  in  pleading  an 
inheritance  in  the  king,  viz.,  Rex  seisitus  fuit  in  dominico  suo  tit 

de  feodo ;  where  the  word  feodum  cannot  possibly  import 
55  *       an  estate  holden,  *  the  king  not  holding  of  any  superior 
lord,  but  merely  denotes  an  inheritance,  (a) 

44.  An  estate  in  fee  simple  is  the  entire  and  absolute  interest 
and  property  in  the  land ;  from  which  it  follows  that  no  one  can 
have  a  greater  estate.  So  that  whenever  a  person  grants  an 
estate  in  fee  simple,  he  cannot  make  any  farther  disposition  of 
it,  because  he  has  already  granted  away  the  whole  interest; 
consequently  nothing  remains  in  him.  An  estate  in  fee  simple 
may,  however,  be  granted  on  condition ;  and  in  devises  by  will, 
and  deeds  deriving  their  effect  from  the  statute  of  uses,  an  estate 
in  fee  simple  may  be  rendered  defeasible  on  the  happening  of 
some  future  event. 

45.  Tenant  in  fee  simple  is  the  absolute  master  of  all  houses 
and  other  buildings  erected  on  the  land,  as  also  of  all  timber 
growing  thereon,  for  trees  are  considered  as  parcel  of  the  inheri- 
tance ;  and  the  law  does  not  favor  the  severance  of  them  from  the 
freehold,  because  they  would  be  thereby  wasted  and  destroyed.1 

(a)  Wright,  149.  263.  b. 


Though  all  that  grows  on  the  soil,  whether  spontaneously  or  by  culture,  ordinarily 


Title  I.    Estate  in  Fee  Simple,  s.  45 — 47.  68 

He  is  also  entitled  to  all  mines  of  metal,  except  gold  and  silver ; 
and  to  dig  up  and  dispose  of  all  minerals  and  fossils  which  are 
under  the  land,  (a) 

46.  We  have  seen  that  the  law  requires  the  freehold  should 
never,  if  possible,  be  in  abeyance ;  but  where  there  is  a  tenant 
of  the  freehold,  the  remainder  or  reversion  in  fee  simple  may 
exist  for  a  time  without  any  particular  owner,  in  which  case  it  is 
said  to  be  in  abeyance.  Thus,  if  an  estate  be  limited  to  A  for 
life,  remainder  to  the  right  heirs  of  B,  the  fee  simple  is  in  abey- 
ance f  during  the  life  of  B,  because  it  is  a  maxim  of  law  that 
nemo  est  hares  viventis.  (b) 

47.  The  law,  however,  does  not  favor  the  abeyance  of  the  fee 
simple,  for  in  that  case  many  operations  are  suspended.  (1.)  The 
particular  tenant  or  person  in  possession  of  the  freehold  is  ren- 
dered dispunishable,  at  law,  for  waste ;  for  a  writ  of  waste  can 
only  be  brought  by  one  entitled  to  the  fee  simple.     (2.)  The 

(a)  Ante,  s.  2.     Lyddall  v.  Weston,  2  Atk.  19.  (b)  1  Inst.  342.  b. 

passes  with  the  land,  yet  trees,  grass,  crops,  and  other  things  fixed  to  the  soil,  and  so 
part  of  the  realty,  may  be  the  subject  of  a  separate  sale,  in  prospect  of  severance,  and 
in  that  case  will  be  regarded  as  personal  chattels,  if  so  treated  by  the  parties.  The 
cases  on  this  much  vexed  subject  are  extremely  contradictory  ;  but  the  principle  now 
most  generally  recognized  seems  to  be  this,  that  in  contracts  for  the  sale  of  things 
annexed  to  and  growing  upon  the  freehold,  if  the  vendee  is  to  have  a  right  to  the  soil 
for  a  time,  for  the  purpose  of  farther  growth  and  profit  of  that  which  is  the  subject  of 
sale,  it  is  an  interest  in  land,  within  the  meaning  of  the  fourth  section  of  the  statute  of 
frauds,  and  must  be  proved  by  writing ;  but  where  the  thing  is  sold  in  prospect  of  sepa- 
ration from  the  soil  immediately,  or  within  reasonable  and  convenient  time,  without 
any  stipulation  for  the  beneficial  use  of  the  soil,  but  with  a  mere  license  to  enter  and 
take  it  away,  it  is  to  be  regarded  as  substantially  a  sale  of  goods  only,  and  so  not  within 
that  section  of  the  statute  ;  although  an  incidental  benefit  may  be  derived  to  the  vendee 
from  the  circumstance  that  the  thing  may  remain  for  a  time  upon  the  land.  The  ques- 
tion thus  turning  upon  the  intention  of  the  parties,  and  the  nature  of  the  contract,  it 
would  seem  to  be  of  no  importance  whether  the  thing  sold  is  to  be  severed  from  the 
soil  by  the  vendor  or  the  vendee ;  whether  it  is  to  be  paid  for  by  particular  admeasure- 
ment, or  in  the  gross  ;  or  whether  the  subject  of  sale  consists  of  trees,  and  other  spon- 
taneous products,  or  of  fructus  industriales.  See  1  Greenl.  on  Evid.  §  271,  4th  ed.  and 
the  cases  in  the  notes.  See  also  Evans  v.  Roberts,  5  B.  &  C.  829,  837,  840;  Jones  v. 
Flint,  10  Ad.  &  El.  753;  Bostwick  v.  Leach,  3  Day,  R.  476,  484;  Claflin  v.  Carpenter, 
4  Met.  584 ;  Austin  v,  Sawyer,  9  Cowen,  39  ;  Smith  v.  Surman,  9  B.  &  C.  5G1 ;  Stukclev 
v.  Butler,  Hob.  173;  Wood  v.  Hewett,  10  Jur.  390;  15  Law  Journ.  247  ;  Mant  v.  Col- 
lins, lb.  248.  [Mauldin  v.  Amistead,  14  Ala.  702 ;  Northen  v.  The  State,  1  Carter, 
(Ind.)  113.     Ante,  §  9,  note,  p.  *  46.] 

[t  That  is,  the  contingent  remainder  in  fee  is  in  expectation,  as  Lord  Coke  expresses 
it,  bat  the  reversion  in  fee  is  not  in  abeyance  but  results  to  the  grantor  until  the  con- 
tingency.] 


64  Title  I.     Estate  in  Fee  Simple,  s.  47 — 50. 

title,  if  attacked,  could  not  formerly  be  completely  defended ;  for 
there  was  no  person  in  being  whom  the  tenant  of  the  freehold 
could  pray  in  aid  to  support  his  right.  (3.)  Nor  could  the  mere 
right  itself,  if  subsisting  in  a  stranger,  be  recovered  in  this  inter- 
val ;  for  in  a  writ  of  right  patent,  a  tenant  for  life  could  not 
56  *  join  the  mise  on  *the  mere  right.  (4.)  And  in  modern 
times  the  courts  do  not  favor  the  abeyance  of  the  fee 
simple,  because  it  operates  as  a  restraint  on  alienation,  (a) 

48.  All  inferior  estates  and  interests  in  land  are  derived  out  of 
the  fee  simple ;  therefore,  whenever  a  particular  estate,  or  limited 
interest  in  land,  vests  in  the  person  who  has  the  fee  simple  of  the 
same  land,  such  particular  estate  or  limited  interest  becomes 
immediately  drowned  or  merged  in  it,1  upon  the  principle  that 
omne  majus  continet  in  se  minus.-\  (b) 

49.  Where  a  sum  of  money  is  charged  upon  a  real  estate, 
which  estate  comes  to  the  person  entitled  to  the  money,  if  in  fee, 
the  charge  is  merged ;  and  where  the  money  is  secured  by  a  term 
for  years,  or  other  legal  estate,  in  a  third  person,  there  the  charge 
is  also  merged,  except  where  creditors  are  concerned ;  or  where 
the  person  becoming  entitled  to  the  charge  is  an  infant,  and  dies 
during  his  minority,  having  by  will  disposed  of  the  charge,  (c) 

50.  A  term  of  five  hundred  years  was  vested  in  trustees  to 
secure  a  daughter's  portion,  payable  at  eighteen,  or  marriage. 
The  fee  simple  of  the  estate  descended  to  the  daughter,  who 
afterwards  died  an  infant,  about  eighteen ;  having  made  a  nun- 
cupative will,  which  was  good  as  to  personal  estate,  whereby 
she  devised  all  in  her  power  to  her  mother.  It  was  decreed  by 
Lord  Somers  that  this  portion  was  not  merged,  but  should  go 
to  the  mother.  And  the  decree  was  affirmed  by  the  House  of 
Lords,  (d) 

(a)  Tit.  2.  c.  2. 

(b)  (Webster  v.  Oilman,  1  Story,  R.  499;  Roberts  v.  Jackson,  1  Wend.  47S.) 

(c)  2  P.  Wins.  604.     Donisthorpe  v.  Porter,  2  Eden,  162.     Vid.  tit.  39,  Merger,  infra. 

(d)  Thomas  v.  Kemeys,  2  Vera.  348.     Colles'  Cases  in  Parliament,  112.    Powell  v.  Mor- 
gan, 2  Vera.  90.     Chester  v.  Willes,  Amb.  246.    Donisthorpe  v.  Porter,  2  Ed.  162. 


i  See  tit.  Estate  for  Years,  ch.  2.    Also,  tit.  Merger,  Vol.  VI.  tit.  39. 

[  f  There  is  one  exception  to  this  rule  in  the  case  of  estates  tail.  Vide  infra,  tit.  2, 
c.  1  :  also  in  the  instance  of  a  base  fee  vesting  in  the  person  seised  of  the  immediate 
reversion  in  fee ;  for  by  the  39th  section  of  the  Statute  3  &  4  Will.  4,  c.  74,  it  is  enacted 
that  the  base  fee  shall  not  merge  but  be  enlarged  to  as  large  an  estate  as  the  tenant  in 
tail  could  acquire  by  any  disposition  under  the  act.] 


Title  I.     Estate  in  Fee  Simple,  s.  51 — 56.  65 

51.  The  law  has  annexed  to  every  estate  and  interest  in  lands, 
tenements,  and  hereditaments,  certain  peculiar  incidents,  rights, 
and  privileges,  which  in  general  are  so  inseparably  attached  to 
those  estates,  that  they  cannot  be  restrained  by  any  proviso  or 
condition  whatever. 

52.  Of  the  several  incidents  inseparably  annexed  to  an  estate 
in  fee  simple,  the  first  is  a  power  of  alienation.  Any  general 
restriction,  therefore,  of  this  power,  annexed  to  the  creation  of  an 
estate  in  fee  simple,  is  absolutely  void,  and  of  no  effect,  (a) 

53.  This  unlimited  power  of  alienation  comprises  in  itself  all 
inferior  powers ;  so  that  a  tenant  in  fee  simple  may  create 

any  *  inferior  estate  or  interest  out  of  his  own.  There-  *  57 
fore  a  custom  that  a  tenant  in  fee  simple  cannot  demise 
his  lands  for  more  than  six  years  is  void,  because  it  is  contrary 
to  the  freedom  of  the  estate  of  one  who  hath  a  fee  simple.  [If 
the  tenant  in  fee  simple  does  not  alienate  his  estate  during  his 
life,  he  has  the  absolute  power  of  testamentary  disposition  by  a 
will  duly  executed  according  to  the  solemnities  required  by 
statute,  (b) 

54.  If  the  tenant  in  fee  simple  dies  intestate,  the]  estate  will 
descend  to  the  heirs  general  of  the  person  who  was  last  seised 
thereof,  whether  male  or  female,  lineal,  or  collateral.  And  it  is 
for  this  reason  that  the  word  simple  is  added  to  the  word  fee, 
importing  an  absolute  inheritance,  clear  of  any  condition,  limita- 
tion, or  restriction  to  particular  heirs ;  in  contradistinction  to 
another  class  of  estates  of  inheritance,  which  are  only  descendible 
to  some  particular  heirs,  of  which  an  account  will  be  given  in 
the  next  title,  (c) 

55.  Estates  in  fee  simple  are  subject  to  the  curtesy  of  the 
husband  and  the  dower  of  the  wife,  which  will  be  noticed  under 
those  respective  titles. 

56.  [Estates  of  which  a  person  died  seised  in  fee  simple,  and 
which  descended  upon  the  heir,  were  at  common  law  liable  in 
the  hands  of  the  heir  to  the  payment  of  all  debts  of  the  ancestor 
by  specialty,  (in  which  the  heir  was  expressly  mentioned  as 
bound,)  but  if  he  aliened  before  the  action  was  brought  the 
creditor  was  without  remedy ;    and  where  the  person  so  dying 

(a)  Doe  v.  Pearson,  tit.  38.  c.  9. 

(b)  Salford's  case,  Dyer,  357.  b.     Tit.  38.  c.  5.  S.  1.  (c)  Tit.  29.  c.  3. 


66  Title  I.     Estate  in  Fee  Simple,  s.  56. 

seised,  was  indebted  by  bond  or  other  speciality,  and  devised  the 
estate,  the  creditor  had  no  remedy  against  the  devisee.]  f  (a) 

(a)  Davye  v.  Pepys,  Plowd.  439.     Buckley  v.  Nightingale,  1  Stra.  665. 

[  tThe  statute  of  3  &  4  Will,  and  Mary,  c.  14,  made  perpetual  by  the  6  &  7  Will. 

3,  c.  14,  gave  the  creditor  "  by  bond  or  other  specialty  "  a  remedy  against  the  heir  and 
devisee  jointly,  and  if  the  heir  aliened  before  action  brought,  he  was  liable  to  the  amount 
of  the  value  of  the  land;  but  the  lands  bond  fide  aliened  by  the  heir  before  action 
brought,  were  not  liable  to  the  debts. 

By  the  above  act  no  remedy  was  given  to  the  creditor  against  the  devisee  alone,  if 
there  were  no  heir ;  and  it  was  held  that  the  act  only  applied  to  specialties  on  which  an 
action  of  debt  lies,  such  as  bond  debts  or  covenants  for  the  payment  of  sums  certain, 
but  not  for  damages  for  breaches  of  covenants  or  contracts  under  seal.     Wilson  v. 

Knubley,  7  East,  128. 
58  *  The  late  act  of  11  Geo.  4,  and  1  Will.  4,  c.  47,  repeals  the  *  above  acts,  and 
remedies  the  defects  before  mentioned,  operating  upon  the  wills  made  or  to  be 
made  of  all  persons  in  being  at  the  passing  of  the  act,  and  upon  all  wills  thereafter 
to  be  made  by  any  person  whomsoever.  The  act  (section  2)  makes  devises  of  real 
estate  void  as  against  the  specialty  creditors  by  bond,  covenant,  or  otherwise  ;  and  by 
section  3  gives  them  a  remedy  by  actions  of  debt  or  covenant  against  the  heir  and 
devisee,  or  the  devisee  of  such  first  named  devisee  ;  and  (section  4)  if  there  be  no  heir 
then  against  the  devisee ;  section  6  makes  the  heir  liable  to  the  amount  of  the  value  of 
the  lands  if  he  alien  before  action  brought.  But  lands  bond  fide  aliened  before  such 
action  are  not  liable  to  the  debts  in  the  hands  of  the  purchaser  ;  section  8  gives  similar 
remedies  against  the  devisee  if  he  alien  before  action  brought. 

The  5th  section  protects  from  the  operation  of  the  act  limitations  arid  devises  of  real 
estate  for  the  payment  of  debts,  or  portions  for  children  in  pursuance  of  marriage  con- 
tracts bond  fide  made  before  marriage,  and  is  nearly  a  reenactment  of  the  3  Will,  and 
Mary,  c.  14,  s.  4.  Gott  v.  Atkinson,  Willes,  521  ;  Millar  v.  Horton,  Cooper,  45  : 
Hughes  v.  Doulben,  2  Bro.  C.  C.  614;  Bailey  v.  Ekins,  7  Ves.  319. 

Until  the  recent  statute  3  &  4  Will.  4,  c.  104,  estates  in  fee  simple  were  not  in  gen- 
eral liable  to  the  payment  of  simple  contract  debts  ;  a  doctrine  not  very  consonant  to 
natural  justice.  By  the  statute  1  &  2  Will.  4,  c.  56,  s.  22,  25,  26,  in  part  repealing  the 
6  Geo.  4,  c.  16,  when  a  person  is  declared  a  bankrupt,  full  power  is  given  to  the  assign- 
ees (in  whom  the  real  and  personal  estate  vests  by  operation  of  the  act)  to  dispose  of 
all  his  lands.  The  statute  3  &  4  Will.  4,  c.  74,  s.  55,  56,  empowers  the  commissioners 
to  dispose  of  the  bankrupt's  estates  tail  to  a  purchaser,  and  in  part  repeals  the  6  Geo. 

4,  and  1  &  2  Will.  4,  c.  56.     Vide  infra,  tit.  2,  c.  2,  s.  40—44. 

Formerly,  where  a  trader  died  before  he  was  declared  a  bankrupt,  his  real  estate  was 
not  liable  to  his  simple  contract  debts.  But  by  the  statute  1  Will.  4,  c.  47,  s.  9,  repeal- 
ing 47  Geo.  3,  sess.  2,  c.  74,  it  is  enacted,  "that  when  any  person,  being  at  the  time  of 
his  death  a  trader  within  the  bankrupt  laws,  shall  die  seised  of,  or  entitled  to,  any  real 
estate,  which  he  shall  not  by  his  last  will  have  charged  with  the  payment  of  his  debts, 
and  which  would  have  been  assets  for  the  payment  of  his  debts  due  on  any  spe- 
59  *  cialty,  in  which  the  heirs  were  bound;  the  *  same  shall  be  assets,  to  be  adminis- 
tered in  courts  of  equity  for  the  payment  of  all  the  just  debts  of  such  person,  as 
well  debts  due  on  simple  contract  as  on  specialty;  provided  that  all  creditors  by  spe- 
cialty shall  be  paid  the  full  amount  of  their  debts  before  any  creditors  by  simple  con- 
tract, or  by  specialty,  in  which  the  heirs  are  not  bound,  shall  be  paid  any  part  of  their 
demands.'" 


Title  I.     Estate  in  Fee  Simple,  s.  57 — 58.  67 

57.  The  personal  estate  is,  however,  the  first  and  immediate 
fund  for  the  payment  of  debts  ;  and  though  a  person  charge  his 
real  estate,  by  his  will,  with  the  payment  of  his  debts,  yet  that 
does  not  exempt  the  personal  estate  from  being  first  applied  for 
that  purpose,  unless  the  testator  expressly  exonerate  it.1  (a) 

*  58.  Even   a  testamentary  disposition  of  all  the  per-       *  60 
sonal   estate   will   not   exempt  it  from  being  applied  in 
payment  of  debts.     For  a  court  of  equity  will  suppose  the  in- 
tention of  the  testator  to  have  been,  that  only  the  residue  of  his 

(a)  Ancaster  v.  Mayer.  1  Bro.  C.  C.  454.  Burton  v.  Knowlton,  3  Ves.  Jr.  107.  Brummell 
v.  Prothero,  lb.  111.  Morrow  v.  Bush,  1  Cox's  E.  185.  Bootle  v.  Blundell,  1  Mer.  193.  19 
Ves.  494. 


And  now  by  the  recent  statute  3  &  4  Will.  4,  c.  104,  freehold  and  copyhold  estates  in 
all  cases  are  made  assets  for  the  payment  of  simple  contract  as  well  as  specialty  debts. 
By  that  statute  it  is  enacted  that  after  the  passing  of  the  act,  (29th  August,  1833,) 
when  any  person  shall  die  seised  of,  or  entitled  to,  any  estate  or  interest  in  lands,  ten- 
ements or  hereditaments,  corporeal  or  incorporeal,  or  other  real  estate,  whether  free- 
hold, customaryhold,  or  copyhold,  which  he  shall  not  by  his  last  will  have  charged 
with  or  devised  subject  to  the  payment  of  his  debts,  the  same  shall  be  assets  to  be  ad- 
ministered in  courts  of  equity  for  the  payment  of  the  just  debts  of  such  persons,  as  well 
debts  due  on  simple  contract  as  on  specialty:  and  that  the  heir  at  law,  customary  heir, 
or  devisee  of  such  debtor,  shall  be  liable  to  all  the  same  suits  in  equity  at  the  suit  of  any 
of  the  creditors  of  such  debtor,  whether  creditors  by  simple  contract  or  by  specialty,  as 
the  heir  at  law  or  devisee  of  any  person  who  died  seised  of  freehold  estates  was  before 
the  passing  of  the  act  liable  to,  in  respect  of  such  freehold  estates  at  the  suit  of  creditors 
by  specialty,  in  which  the  heirs  were  bound :  And  it  is  provided  that  in  the  adminis. 
tration  of  assets  by  courts  of  equity,  under  the  act,  all  creditors  by  specialty  in  which 
the  heirs  are  bound,  shall  be  paid  the  full  amount  of  the  debts  due  to  them,  before  any 
of  the  creditors  by  simple  contractor  by  specialty  in  which  the  heirs  are  not  bound,  shall 
be  paid  any  part  of  their  demands.  See  as  to  the  limitation  of  actions  for  debts  of 
specialty,  &c„  statute  3  &  4  Will.  4,  c.  42,  s.  3.] 

[l  Where  a  testator  gives  several  legacies  and  then,  without  creating  an  express  trust 
to  pay  them,  makes  a  general  residuary  disposition  of  the  whole  estate,  blending  the 
realty  and  personalty  together  in  one  fund,  the  real  estate  will  be  charged  with  legacies, 
for  in  such  a  case  the  'residue '  can  only  mean  what  remains  after  satisfying  the  previ- 
ous gifts.  Hill  on  Trustees,  508.  Such  is  the  settled  law  both  in  England  and  in  the 
United  States,  though  cases  do  not  often  occur  for  its  application.  Where  one  does 
occur,  a  legatee  may  sue  to  recover  the  legacy  without  distinguishing  in  his  will  the 
estate  into  the  two  kinds  of  realty  and  personalty,  because  it  is  the  manifest  intention 
of  the  testator  that  both  should  be  charged  with  the  payment  of  the  money  legacies- 
Nor  does  this  conflict  at  all  with  the  principle  of  equity  jurisprudence  declaring  that 
generally  the  personal  estate  of  the  testator  is  the  first  fund  for  the  payment  of  debts 
and  legacies.  The  rule  has  its  exceptions,  and  this  is  one  of  them.  Lewis  v.  Darling,  1G 
How.  U.  S.  1,  10.  An  estate  in  fee,  defeasible  upon  a  contingency,  is  liable  to  be  taken 
in  execution  by  a  creditor  of  the  tenant,  and  held  until  the  happening  of  the  contingency. 
Phillips  v.  Rogers,  12  Met.  405.] 


68  Title  I.     Estate  in  Fee  Simple,  s.  58 — 60. 

personal  estate,  after  payment  of  debts,  should  go  to  the  legatees, 
unless  a  contrary  intention  evidently  appears.1  (a) 

59.  By  the  common  law  the  king  was  entitled  to  have  execu- 
tion of  the  body,  goods  and  lands  of  his  debtor,  by  virtue  of  his 
royal  prerogative.  By  the  eighth  chapter  of  Magna  Charta  it 
was  declared  that  the  king's  bailiffs  should  not  seize  any  lands 
or  rent  for  debt,  as  long  as  the  goods  and  chattels  of  the  debtor 
sufficed.  Nos  vero  nee  ballivi  nostri  non  seisiemus  terrain  aliquam 
vel  redditum,  pro  debito  aliquo,  quamdiu  catalla  debitoris  prcesentia 
sufficiunt,  et  ipse  debitor  paratus  sit  satisfacere.  And  Lord  Coke 
observes  that  this  was  an  act  of  grace,  restraining  the  power 
which  the  king  had  before,  (b) 

60.  If  the  goods  and  chattels  are  not  sufficient,  his  real  estates 
become  liable  to  the  payment  of  all  the  debts  due  to  the  crown  ; 
for,  where  the  debt  is  of  record,  or  by  specialty,  the  process  is  by 
writ  of  extent,  returnable  in  the  Court  of  Exchequer ;  by  which 
the  sheriff  is  directed  to  inquire,  by  the  oaths  of  lawful  men, 
what  lands  and  tenements  the  debtor  had  at  the  time  of  the  debt 
contracted.  And  if  the  debt  arises  on  simple  contract,  the  prac- 
tice of  the  exchequer  is,  on  affidavit  of  the  debt,  to  direct  a  com- 
mission to  inquire  of  it ;  and  on  inquisition  returned,  the  debt  is 
recorded,  and  an  extent  issues,  (c) 

(«)  Stephenson  p.  Heathcote,  1  Eden,  38. 

(b)  2  Inst.  19.     Dyer,  67.  b.    Attorney-General  v.  Resby,  Hard.  R.  37S. 

(c)  2  Inst.  19.     Rorke  v.  Dayzell,  4  Term  R.  408. 


i  In  the  United  States,  the  rule  is,  that  lands  are  liable  for  the  debts  of  the  owner, 
whether  due  by  matter  of  record,  by  specialty,  or  by  simple  contract.  Upon  his  death, 
they  descend  to  the  heir,  or  go  tb  the  devisee,  subject  to  the  payment  of  the  debts  of  the 
ancestor,  according  to  the  laws  of  the  State  in  which  they  are  situated.  Watkins  v. 
Holman,  16  Peters,  R.  25,  62,  63.  The  heir  or  devisee  has  no  right,  except  that  of 
possession,  until  the  creditors  shall  be  paid.  The  ordinary  mode  of  reaching  the  lands 
of  a  deceased  debtor,  is  through  the  executor  or  administrator,  who  is  empowered  by 
the  proper  court,  on  deficiency  of  the  personal  assets,  to  sell  so  much  of  the  real  estate 
as  may  be  necessary  to  discharge  the  remaining  debts.  And  in  several  of  the  States, 
the  lands  may  also  be  taken  on  an  execution  against  the  executor.  In  most  of  the 
States,  the  personal  estate  of  a  deceased  person  is  the  primary  fund  for  the  payment  of 
his  debts ;  and  the  assets  are  marshalled  in  equity  as  follows  : — 1.  The  general  per- 
sonal estate;  2.  Real  estate  specially  charged  by  will  with  the  payment  of  debts;  3. 
Real  estate  not  devised  ;  4.  Real  estate  devised.  4  Kent,  Comm.  420,  421 ;  1  Story  on 
Eq.  Jurisp.  §  551—577  ;  Hays  v.  Jackson,  6  Mass.  149.  But  the  methods  of  carrying 
out  the  above-mentioned  doctrine,  in  the  settlement  of  estates,  are  greatly  diversified 
by  the  statutes  of  the  several  States,  to  which  alone,  with  the  decisions  upon  them,  re- 
sort can  safely  be  had.     See  4  Kent,  Comm.  420 — 422. 

[As  to  the  mode  in  which  the  lands  of  a  debtor  may  be  taken  on  execution,  see  jiost, 
tit.  XIV.,  §  97,  note,  page  * 63.] 


Title  I.     Estate  in  Fee  Simple,  s.  61—63.  69 

61.  Where  the  king's  debtor  dies,  the  crown  may,  notwith- 
standing, seize  his  lands  and  goods.  It  is  said  by  Fanshawe, 
remembrancer  of  the  queen,  that,  after  the  death  of  any  debtor 
to  the  crown,  process  shall  issue  against  the  executor,  the  heir, 
and  the  terre-tenants  altogether.  And  in  a  modern  case  the 
Court  of  Exchequer  said,  that  whenever  an  extent  might  have 
issued  in  a  man's  lifetime,  a  writ  of  diem  clausit  extremum  may 
issue  against  the  estate  of  a  simple  contract  creditor,  where  such 
debt  was  found  by  inquisition ;  though  the  person  was  not  the 
king's  debtor  by  record  at  the  time  of  his  death,  (a) 

62.  It  is  not  necessary  that  there  should  be  any  contract  with 
the  king  to  make  a  person  a  crown  debtor.  For  it  was  resolved 
in  2  Eliz.  that  if  any  money,  goods,  or  chattels  of  the  king 
come  *to  the  hands  of  a  subject,  by  matter  of  record,  or  *61 
by  matter  in  fait,  the  land  of  such  subject  is  charged 
therewith.  But  it  was  said  in  Doddington's  case,  that  the  party 
receiving  must  know  it  to  be  the  king's  money  ;  for  if  a  person 
sells  land  to  a  receiver  of  the  king,  who  pays  him  for  it  with  the 
king's  money,  and  the  vendor  is  not  privy  to  it,  he  shall  not  be 
answerable,  (b) 

63.  Lord  Chief  Baron  Gilbert  says,  all  debts  due  to  the  king- 
are  a  lien  on  the  lands  of  the  debtor,  from  the  time  when  they 
were  contracted ; 1  for  the  debts  that  were  of  record  always  bound 

,  (a)  Favel's  case.     Dyer  160.  a.  224.  b.     Anon.  Sav.  53.     Hex  v.  Mitchener,  Bunb.  118. 

(6)  Plowd.  321.  (Doddington's  case,  Cro.  El.  545.  E.  of  Devon's  case,  11  Eep.  S9.  Bras- 
sey  v.  Dawson,  2  Stra.  978.) 

1  The  United  States  have  no  such  lien  by  prerogative.  TJ.  S.  v.  Canal  Bank,  3  Story, 
R.  80,  81 ;  U.  S.  v.  Hooe,  3  Cranch,  73  ;  Prince  v.  Bartlett,  8  Cranch,  431 ;  TJ.  S.  v. 
Howland,  4  Wheat.  108  ;  but  have  only  a  right  of  priority  of  payment,  in  certain  cases, 
conferred  by  express  statutes.  These  cases  are,  (1,)  the  decease  of  the  debtor,  without 
sufficient  assets  to  pay  his  debts;  (2,)  where  the  debtor,  not  being  able  to  pay  his  debts, 
has  made  a  voluntary  assignment  of  all  his  property  for  the  general  benefit  of  all  his  cred- 
itors ;  (3,)  where  he  is  absent,  or  concealed,  or  has  absconded,  and  his  estate  and  effects 
are  attached  by  process  of  law;  and  (4.)  where  he  has  become  bankrupt  or  legally  in- 
solvent, the  same  being  manifested  by  some  act  pursuant  to  law.  4  Kent,  Coram. 
247  ;  3  Story,  R.  81.  It  is  only  a  priority  of  payment ;  and,  therefore,  does  not  over- 
reach a  prior  bona  fide  alienation  of  property.  TJ.  S.  v.  Fisher,  2  Cranch,  358;  Conard 
v.  Atlantic  Ins.  Co.,  1  Peters,  S.  C.  R.  439;  Brent  v.  Bank  of  Washington,  10  Peters, 
R.  611.  Nor  docs  it  attach  where  the  voluntary  assignment  by  the  debtor  is  of  a  part 
only",  and  not  the  whole  of  his  property.  U.  S.  v.  Hooe,  3  Cranch,  73 ;  TJ.  S.  v.  Mon- 
roe, 5  Mason,  572  ;  U.  S.  v.  Hawkins,  16  Mart.  317 ;  TJ.  S.  v.  Clark,  1  Paine.  629.  Nor 
where  the  conveyance,  though  of  all  his  property,  is  to  one  or  more  specified  creditors, 
in  discharge  of  their  respective  debts,  not  exceeding  in  value  the  amount  due  to  them, 


70  Title  I.     Estate  in  Fee  Simple,  s.  63 — 64. 

the  lands  of  the  debtor,  and  the  specialty  debts  by  the  Stat.  23 
H.  8,  c.  6,  bind  as  a  statute  staple.  Therefore,  if  a  person  becomes 
bound  to  the  king  in  a  bond,  and  process  is  issued  on  it,  the  writ 
warrants  the  sheriff  to  inquire  of  and  seize  the  lands  of 
62  *  the  *  debtor,  which  he  had  on  the  day  when  the  bond  was 
executed.  But  if  a  bond  be  assigned  to  the  king,  the 
process  shall  not  be  to  inquire  of  and  seize  the  lands  which  the 
obligor  had  when  he  entered  into  bond,  but  only  the  lands  which 
the  obligor  had  when  the  bond  was  assigned,  (a) 

64.  By  the  Statute  13  Eliz.  c.  4,  s.  1,  it  is  enacted,  that  all  the 
lands,  tenements,  and  hereditaments,  which  any  treasurer  or 
receiver  of  the  courts  of  exchequer,  or  duchy  of  Lancaster, 
treasurer  of  the  chamber,  cofferer  of  the  household,  treasurer  for 
the  wars,  or  of  the  admiralty  or  navy,  or  the  mint,  receiver  of 
any  sums  of  money  imprest,  or  otherwise,  for  the  use  of  the 
queen,  her  heirs  or  successors,  customer,  collector,  or  farmer  of 
the  customs  within  any  port  of  the  realm,  receiver-general  of  the 
revenues  of  any  county  or  counties,  answerable  in  the  receipt  of 
the  exchequer,  or  the  duchy  of  Lancaster,  hath,  while  he  remains 
accountant,  shall,  for  the  payment  of  the  queen,  her  heirs  or  suc- 
cessors, be  liable  and  put  in  execution,  in  like  manner  as  if  the 
same  treasurer,  receiver,  &c,  had,  the  day  he  became  first  officer 

(a)  Gilb.  Exch.  c.  16,  p.  88.     Tit.  14  and  32,  c.  8. 

and  not  for  the  benefit  of  creditors  at  large.  U.  S.  v.  McLcllan,  3  Sumn.  345.  Nor 
does  it  supersede  or  displace  a  prior  lien,  gained  by  a  private  creditor  by  attachment  or 
seizure  in  execution.  U.  S.  v.  Canal  Bank,  3  Story,  R.  79 ;  Wilcox  v.  Wain,  10  S.  & 
R.  380;  U.  S.  v.  Mechanic's  Bank,  Gilpin,  R.  51;  Prince  v.  Bartlett,  8  Cranch,  431. 
Neither  does  it  extend  to  estate  vested  in  the  heirs  of  a  deceased  insolvent ;  but  only  to 
the  proceeds  of  such  estate  in  the  hands  of  his  executor  or  administrator.  U.  S.  r. 
Crookshank,  1  Edw.  Ch.  R.  233.  Nor  to  take  partnership  property,  for  the  payment 
of  a  private  debt  of  one  of  the  partners,  until  the  partnership  creditors  arc  satisfied. 
U.  S.  v.  Hack,  8  Peters,  R.  271.  Nor  to  defeat  the  widow  of  an  insolvent  debtor,  of  her 
allowance  out  of  the  estate,  in  the  discretion  of  the  Judge  of  Probate.  The  Postmaster- 
General  v.  Robbins,  Ware,  R.  165.  Nor  does  it  take  effect  at  all,  while  the  property 
remains  in  the  debtor's  hands  undivested,  though  he  be  insolvent  in  fact.  Beaston  v. 
Parmer's  Bank,  12  Peters,  R.  102.  See  also  4  Kent,  Comm.  243—248.  But  the 
United  States  have  a  prior  lien  on  goods  imported,  for  the  duties  accruing  thereon, 
which  is  paramount  to  any  attachment  of  them  on  process  at  the  suit  of  a  private 
creditor.  Harris  v.  Dennie,  3  Peters,  R.  292.  And  sureties  in  a  bond  for  such  duties, 
or  other  penalty  due  to  the  United  States,  on  paying  the  bond,  are  subrogated  to  the 
priority  and  advantages  belonging  to  the  United  States.  Stat.  U.  S.  1792,  ch.  23,  §  18; 
Stat.  U.  S.  1799,  ch.  110,  §  65.  (1  Peter's  ed.  p.  263,  676.)  Hunter  v.  U.  States,  5 
Peters,  R.  173. 


Title  I.     Estate  in  Fee  Simple,  s.  64—67.  71 

or  accountant,  stood  bound  by  wrong  obligatory,  having  the 
effect  of  a  statute  staple,  to  her  majesty,  her  heirs  or  successors, 
for  payment  of  the  same. 

65.  Where  lands  are  once  liable  to  a  crown  debt,  the  lien  con- 
tinues, into  whose  hands  soever  they  pass  ;  even  though  conveyed 
by  the  debtor  bond  fide  to  a  purchaser  for  valuable  consideration. 
Thus  it  is  said  that  if  a  man  becomes  debtor  to  the  king,  being 
seised  of  land  in  fee,  and  after  aliens  the  land,  yet  it  may  be  put 
in  execution,  though  the  alienation  was  before  any  action  com- 
menced ;  for  it  relates  to  the  time  when  he  became  indebted  to 
the  king,  and  after,  (a) 

66.  The  only  proper  and  legal  discharge  of  a  debt  due  to  the 
crown  is  an  acquittance  from  the  officers  of  the  exchequer,  which 
is  usually  called  a  quietus,  because  it  generally  concluded  with 
these  words, — abinde  recessit  quietus.  And  by  the  Stat.  27  Eliz. 
c.  3,  it  is  enacted,  That  if  an  accountant  or  debtor  to  the  crown 
obtains  a  quietus  in  his  lifetime,  his  lands  shall  not  be  sold  after 
his  death.f  (6) 

67.  Estates  in  fee  simple  are  forfeited  to  the  crown  by  attainder 
of  treason ; l  and  the  lands  whereof  a  person  so  attainted  dies 
seised  in  fee  simple,  become  vested  in  the  crown,  without  any 
office ;  because  they  cannot  descend  on  account  of  the  corruption 

(a)  2  Roll.  Ab.  156,  pi.  1.     Vide  tit.  32,  c.  27. 

(b)  Poole  v.  Shergold,  1  Cox,  R.  160.     Vide  tit.  14. 

[  t  The  Stat.  1  and  2  Geo.  4,  c.  121,  s.  10,  provides,  That  when  the  estate  of  an 
accountant  to  the  crown  is  sold  under  an  extent  or  decree  of  the  Courts  of  Chancery 
or  Exchequer,  and  the  purchaser  pays  his  money  into  the  Exchequer,  from  the 
*  entry  of  such  payment  by  the  commissioners  for  auditing  public  accounts,  the  *  63 
purchaser,  his  heirs  and  assigns,  shall  be  wholly  discharged  from  all  further 
claims  by  the  crown,  although  the  money  shall  not  be  sufficient  to  discharge  the  whole 
debt.  In  this  particular  case  the  estate  would  be  exonerated  although  the  crown  debtor 
should  not  obtain  his  quietus. 

By  the  9  Geo.  3,  c.  16,  called  the  Nullum  Tempus  Act,  the  crown  is  disabled  from 
suing  for  the  recovery  of  any  lands,  tenements,  or  hereditaments,  where  its  right  shall 
not  have  accrued  within  a  period  of  sixty  years  next  before.  Goodtitle  v.  Baldwin,  11 
East's  Rep.  488.  The  recent  statute  of  limitations,  3  &  4  Will.  4,  c.  27,  does  not  ap- 
pear to  affect  remedies  of  the  crown  against  the  crown  debtor.] 

1  Forfeiture  for  treason  against  the  United  States  is  abolished,  by  Stat.  Apr.  20, 
1790,  c.  9;  but  it  still  exists,  by  common  law,  for  treason  against  those  individual 
States  which  have  not  expressly  abolished  it.  2  Kent,  Comm.  p.  386.  In  New  York, 
the  judgment  of  outlawry  after  conviction  for  treason  works'  a  forfeiture  of  the  party's 
freehold  estates  during  his  life,  and  of  all  his  goods  and  chattels.  Rev.  St.  New  York, 
1846,  Vol.  II.  p.  746,  $  3.    See  post,  tit.  29,  ch.  2,  §  20,  note;  tit.  30,  §  11,  note. 


72  Title  I.     Estate  in  Fee  Simple,  s.  67—71. 

of  blood  of  the  person  lastseiscd ;  and  the  freehold  shall  not  be 
in  abeyance,  (a) 

68.  This  forfeiture  relates  backwards  to  the  time  when  the 
crime  was  committed,  so  -as  to  avoid  all  intermediate  sales  and 
incumbrances,  but  not  those  made  before,  (b) 

69.  In  cases  of  petty  treason  and  felony,  the  estate  is  only 
forfeited  to  the  crown  for  a  year  and  a  day,  which  was  formerly 
called  the  annum  diem  et  vastum.  After  that  period,  in  conse- 
quence of  the  corruption  of  blood,  it  escheats  [in  the  cases  of 
petty  treason  and  murder]  to  the  lord  of  whom  it  is  held.f  (c) 

70.  An  estate  in  fee  simple  is  still  so  far  considered  as  a  strict 
feud,  and  the  tenant  thereof  so  far  bound  to  perform  the  feudal 
duties  and  services,  that  if  he  disclaims  upon  record  to  hold  his 
lands  of  his  lord,  it  will  operate  as  a  forfeiture  of  his  estate ;  and' 
the  lord  may  thereupon  have  a  writ  of  right  upon  a  disclaimer  $ 
for  the  recovery  of  the  land.  But  if  the  lord  accepts  rent  from 
the  tenant  after  the  disclaimer,  he  will  be  thereby  barred  of  this 
writ,  (d) 

71.  "  Of  fee  simple,  (says  Lord  Coke,)  it  is  commonly  holden 
that  there  be  three  kinds,  viz.,  fee  simple  absolute,  fee  simple 
conditional,  and/<?e  simple  qualified  or  a  base  fee.  .  But  the  more 
genuine  and  apt  division  were  to  divide  fee,  that  is,  inheritance, 
into  three  parts,  viz.,  simple  or  absolute,  conditional,  and  quali- 
fied or  base ;  for  this  word  simple  properly  excludeth  both  con- 
ditions and  limitations  that  defeat  or  abridge  the  fee."  (e) 

(a)  2  Hawk.  V.  C.  c.  4.  s.  1.  (5)  1  Inst.  390.  b. 

(c)  1  Hale,  P.  C.  360.     Rex  v.  Morphes,  1  Salk.  85.     Tit.  30. 

(d)  Dissert,  c.  1.  s.  76.     1  Inst.  102.  a.     Booth,  E.  Act.  133.     3  Leon.  271.     (e)  1  Inst.  1.  b. 

[t  By  the  Stat.  54  Geo.  3,  c.  145,  no  attainder  for  felony,  save  and  except  in  cases 
of  the  crime  of  high  treason,  or  of  the  crimes  of  petit  treason  or  murder,  or  of  abetting, 
procuring,  or  counselling  the  same,  shall  extend  to  the  disinheriting  of  any  heir,  nor  to 
the  prejudice  of  the  right  or  title  of  any  person  or  persons,  other  than  the  right  or  title 
of  the  offender  or  offenders,  during  his,  her,  or  their  natural  lives  only;  and  that  it  shall 
be  lawful  to  every  person  or  persons  to  whom  the  right  or  interest  of  any  lands,  tene- 
ments, or  hereditaments,  after  the  death  of  any  such  offender  or  offenders,  should  or 
might  have  appertained,  if  no  such  attainder  had  been,  to  enter  into  the  same. 
64*  It  would  appear  that  this  act  leaves  the  offender  the  *  power  of  disposing  of 
his  estate  in  reversion  expectant  upon  his  decease. 

Trust  estates  in  fee  simple  are  forfeited  to  the  crown  for  treason,  but  they  do  not 
escheat  to  the  lord  for  felony.     Tit.  12,  c.  2,  s.  25—28.] 

[t  This  writ  was  abolished  after  the  first  of  June,  1835,  by  Stat.  3  & 4  Will.  4,  c.  27, 
s.  36,  37,  38.] 


Title  I.     Estate  in  Fee  Simple,  s.  72—76.  73 

72.  The  nature  of  an  estate  in  fee  simple  absolute  has  been 
already  explained.  But  where  an  estate  limited  to  a  person  and 
his  heirs  has  a  qualification  annexed  to  it,  by  which  it  is  pro- 
vided that  it  must  determine  whenever  that  qualification  is  at  an 
end,  it  is  then  called  a  qualified  or  base  fee.  As  in  the  case  of  a 
grant  to  A  and  his  heirs,  tenants  of  the  manor  of  Dale,  when- 
ever the  heirs  of  A  cease  to  be  tenants  of  that  manor,  their  estate 
determines,  (a) 

73.  Lord.  Hale  gives  the  following  instance  of  a  qualified  or 
base  fee.  King  Henry  III.  dedit  manerium  de  Penrith  et  Sourby 
Alexandro,  regi  Scotia,  et  hceredibus  suis,  regibus  Scotice.  Alex- 
ander died,  not  leaving  any  heir  king  of  Scotland,  but  only 
daughters ;  et  ed  de  causa,  King  Edward  I.  recovered  seisin,  and 
the  coheirs  of  Alexander  were  excluded.  So  where  King  Edward 
III.  gave  lands  to  the  Black  Prince,  and  to  his  heirs,  kings  of 
England,  it  was  held  that  the  grantee  had  a  qualified  fee  ;  and 
having  died  in  the  lifetime  of  his  father,  so  that  his  son  did  not 
then  become  king  of  England,  the  land  reverted,  (b) 

74.  In  a  modern  case  the  Court  of  King's  Bench  certified  to 
the  chancellor  that  a  devise  to  trustees   and  their  heirs,  upon 
trust  to  pay  the  testator's  debts  and  legacies  ;  and  after 
payment  *  thereof,  to  his  sister  for  life,  &c,  gave  abase       *65 
fee  to  the  trustees,  determinable  on  payment  of  the  debts 

and  legacies,  (c) 

75.  Where  a  person  holds  his  estate  to  him  and  his  heirs,  as 
long  as  A  B  has  heirs  of  his  body ;  this  is  a  species  of  qualified 
or  base  fee,f  of  which  a  more  particular  account  will  be  given  in 
the  next  title,  (d) 

76.  The  proprietor  of  a  qualified  or  base  fee  has  the  same 

(a)  1  Inst.  27.  a.  {b)  Id.  n.  6.     1  Rep.  137.  b. 

(c)  Wellington  v.  "Willington,  1  Bla.  Eep.  G45.     S.  C.  4  Bur.  2165.     See  also  Gibson  v.  Lord 
Montfort,  1  Ves.  485. 

(d)  10  Rep.  97.  b. 

[t  This  occurs  where  a  tenant  in  tail,  not  being  seised  of  the  immediate  reversion  in 
fee,  has  levied  a  fine  with  proclamations  to  a  stranger  in  fee.  The  issue  under  the  en- 
tail are  barred  by  the  fine  of  their  ancestor  from  claiming  the  estate;  and  the  stranger 
has  a  fee  so  long  as  there  are  issue  under  the  entail ;  by  this  process  the  character  of 
the  estate  tail  is  changed  and  becomes  a  qualified  or  base  fee,  determinable  on  failure  of 
the  issue  under  the  entail :  it  was  until  the  late  act  of  3  &  4  Will.  4,  c.  74,  s.  39,  capa- 
ble of  merger  by  union  with  the  ultimate  reversion  in  fee,  which,  so  long  as  it  continued 
an  estate  tail,  could  not  have  taken  place.] 
VOL.    I.  7 


74  Title.     Estate  in  Fee  Simple,  s.  76. 

rights  and  privileges  over  his  estate,  till  the  qualification  upon 
which  it  is  limited  is  at  an  end,  as  if  he  were  tenant  in  fee  sim- 
ple, (a) 

With  respect  to  conditional  fees,  they  will  be  treated  of  in  the 
next  title. 

(a)  Plowd.  557. 


75 


TITLE  II. 

ESTATE     TAIL. 
BOOKS    OF   REFERENCE   UNDER    THIS    TITLE. 

Littleton's  Tenures. 

Coke  upon  Littleton. 

Preston  on  Estates,  ch.  7,  8,  9,  10,  11. 

Blackstone's  Commentaries,  Book  II.  ch.  7. 

Flintoff  on  Real  Property.    Vol.  II.  Book  I.  ch.  3. 

Kent's  Commentaries.     Lect.  54. 

Lomax's  Digest.     Tit.  2. 

CHAP.  I. 

OF   THE   ORIGIN   AND    NATURE    OP   ESTATES   TAIL. 

CHAP.  II. 

OF   THE   POWER   OF   TENANT   IN   TAIL   OVER   HIS   ESTATE,  AND   THE 
MODES    OF   BARRING    IT. 


CHAP.  I. 

OF   THE    ORIGIN   AND   NATURE   OF   ESTATES   TAIL. 

Sect,    1.  Of  Conditional  Fees.  Sect.  30.  Who  maybe  Tenants  in  Tail. 

8.  Statute  de  Donis.  31.  Incidents  to  Estates  Tail. 

12.  Description  of  an  Estate  Tail.  32.  Power  to  commit  Waste.     , 

13.  Tail  General  and  Special.  36.  Subject  to  Curtesy  and  Dower. 


14.   Tail  Male  and  Female. 
1 7.  Estates  in  Frank  Marriage. 
19.  Estates  Tail  are  held  of  the 
Donor. 

22.  How  Created. 

23.  What  may  be  Entailed. 


37.  But  not  to  Merger. 

39.  Tenant  in  Tail  entitled  to  the 

Deeds. 

40.  Is  not  bound  to  pay  off  In- 

cumbrances. 


Section  1.  Donations  of  land  were  originally  simple  and  pure, 
without  any  condition  or  modification  annexed  to  them  ;  and  the 
estates  created  by  such  donations  were  held  in  fee  simple.  In 
course  of  time,  however,  it  became  customary  to  make  donations 
of  a  more  limited  nature,  by  which  the  gift  was  restrained  to 


76  Title  II.     Estate   Tail     Ch.  I.  s.  1 

some  particular  heirs  of  the  donee,  exclusive  of  others  ;  as  to  the 
heirs  of  a  man's  body,  by  which  only  his  lineal  descend- 
67  *       ants  were  admitted,  *  in  exclusion  of  collateral  heirs ;  or 
to  the  heirs  male  of  his  body,  in  exclusion  both  of  collat- 
eral heirs,  and  lineal  female  heirs. 

2.  Thus  Bracton,  in  treating  of  donations,  says  : — Item  sicut 
ampliari  possunt  hmredes,  sicut  prcedictum  est,  ita  coarctari 
poterunt  per  modum  donationis,  quod  omnes  hmredes  generaliter 
ad  successionem  non  vocantur.  Modus  enim  legem  dat  donationi, 
et  modus  tenendus  est  contra  jus  commune,  et  contra  legem,  quia 
modus  et  conventio  vincunl  legem.  Ut  si  dicatur — Do  tali  tan- 
tam  terram  cum  pertinentiis  in  N.  habendum  et  tenendam  sibi 
et  hceredibus  suis,  quos  de  came  sud  et  uxore  sibi  desponsatd  pro- 
creatos  habuerit.  Vel  sic — Do  tali,  et  tali  uxori  sues,  vel  cum 
tali  filid  med,  Src,  habendum  et  tenendum  sibi  et  hceredibus  suis, 
de  came  talis  uxoris,  vel  filicc  exeuntibvs,  vel  procreatis  velpro- 
creandis;  quo  casu  cum  ccrti  liceredes  exprimanlur  in  donatione, 
videre  poterit  quod  tantum  sit  descensus  ad  ipsos  hceredes  com- 
munes per  modum  in  donatione  appositum ;  omnibus  aliis 
hceredibus  suis  a  successione  penitus  exclusis,  quia  hoc  voluit 
donator.  (a) 

3.  These  limited  donations  were  evidently  derived  from  the 
feudum  talliatum,  of  which  an  account  has  been  already  given, 
and  were  probably  introduced  into  England  about  the  end  of  the 
reign  of  King  Henry  II.  or  that  of  one  of  his  sons;  for  Glan- 
ville,  who  gives  a  very  minute  account  of  the  different  estates 
in  land  that  were  known  in  his  time,  makes  no  mention  of  limited 
donations ;  whereas  we  have  seen  that  Bracton,  who  wrote  in 
the  reign  of  King  Henry  III.,  has  given  a  full  description  of 
them,  (b) 

4.  As  the  proprietors  of  estates  held  in  fee  simple  had,  at  that 
period,  acquired  a  power  of  alienation,  there  can  be  no  doubt  but 
that  these  limited  donations  were  introduced  for  the  purpose  of 
restraining  that  right.  But  the  general  propensity  which  then 
prevailed  to  favor  a  liberty  of  alienation  induced  the  courts  of 
justice  to  construe  limitations  of  this  kind  in  a  very  liberal  man- 
ner. Instead  of  declaring  that  these  estates  were  descendible  to 
those  heirs  only  who  were  particularly  described  in  the  grant, 
according  to  the  manifest  intention  of  the  donors,  and  the  strict 

(a)  Bract,  lib.  2.  c.  6.  17.  b.     Fleta,  lib.  3.  c.  9.    Britton,  c.  36.  (I)  Dissert,  c.  1.  s.  07. 


Title  II.     Estate   Tail.     Ch.  I.  s.  4—6.  77 

principles  of  the  feudal  law ;  f  and  that  the  donees  should 

not,  *in  any  case,  be  enabled  by  their  alienation  to  defeat       *68 

the  succession  of  those  who  were  mentioned  in  the  gift,  or 

the  donor's  right  of  reverter ;  they  had  recourse  to  an  ingenious 

device  taken  from  the  nature  of  a  condition. 

5.  Now  it  is  a  maxim  of  the  common  law  that  when  a  condi- 
tion is  once  performed,  it  is  thenceforth  entirely  gone ;  and  the 
thing  to  which  it  was  before  annexed  becomes  absolute  and 
wholly  unconditional.  The  judges'  reasoning  upon  this  ground 
determined  that  these  estates  were  conditional  fees,  that  is,  were 
granted  to  a  man  and  the  heirs  of  his  body,  upon  condition  that 
he  had  such  heirs  ;  therefore  as  soon  as  the  donee  of  an  estate 
of,  this  kind  had  issue  born,  his  estate  became  absolute  by  the 
performance  of  the  condition  ;  at  least  for  these  three  purposes. 
1.  To  enable  him  to  alien  the  land,  and  thereby  to  bar,  not  only 
his  own  issue,  but  also  the  donor,  of  his  right  of  reverter.  2. 
To  subject  him  to  forfeit  the  estate  for  treason  or  felony ;  which 
till  issue  born  he  could  not  do,  for  any  longer  term  than  that  of 
his  own  life  ;  lest  the  right  of  inheritance  of  the  issue,  and  that 
of  reverter  of  the  donor,,  might  be  thereby  defeated.  3.  To  en- 
able him  to  charge  the  lands  with  rents  and  other  incumbrances, 
so  as  to  bind  his  issue,  (a) 

6.  The  donee  of  a  conditional  fee  might  also  alien  the  lands 
before  issue  had ;  nor  could  the  donor  have  entered  in  such  a 
case,  because  that  would  have  been  contrary  to  his  own  donation, 
which  limited  the  lands  to  the  donee  and  his  issue.  And  if  the 
donee  had  issue,  born  after  the  alienation,  the  donor  was  excluded 
during  the  existence  of  such  issue.  The  issue  were  also  bound 
by  the  alienation  of  their  ancestor,  though  previous  to  their 
birth,  because  they  could  only  claim  in  the  character  of  his  repre- 
sentatives ;  and  were,  therefore,  barred  by  his  acts.  But  where 
the  donee  of  a  conditional  fee  aliened  before  he  had  issue,  such 
alienation  did  not  bar  the  donor's  right  of  reverter,  whenever 
there  happened  a  failure  of  issue ;  because  the  subsequent  birth 

(a)  Tit.  13.  c.  2.     Plowd.  235,  241.     1  Inst.  19.  a.  2—333.     7  Rep.  34.  b. 

t  Jus  feuJale  non  solum  talliis  non  adversai'i,  sed  maxime  eis  favore  constat :  non 
solum  quod  nullas  foeminas  ad  successionem  admittet,  sed  multo  magis,  quod  tcnorcm 
succcssionis  semper  scrvandum  jubeat;  hajrcditatemque  secundum  cam  defcrendani 
expresse  jubeat.     Craig,  lib.  2,  tit.  16,  §  3.] 

7* 


78  Title  II.     Estate  Tail.     Ch.  I.  s.  6—9. 

of  issue  was  not  a  sufficient  performance  of  the  condition  to 
render  the  precedent  alienation  valid,  (a) 

7.  Where  the  person  to  whom  a  conditional  fee  was  granted 
had  issue,  and  suffered  it  to  descend  to  such  issue,  they  might 
alien  it ;  because  having  succeeded  by  descent  to  the  estate  of 
their  ancestor,  who  had  acquired  a  power  of  alienation  by  having 

issue,  they  took  the  esta+e  in  the  same  manner,  discharged 
69*       from  *any  restraint  whatever.     But  if  the  issue  did  not 

alien,  the  donor  would  still  be  entitled  to  his  right  of 
reverter,  as  the  estate  would  have  continued  subject  to  the  limi- 
tations contained  in  the  original  donation,  (b) 

8.  From  this  mode  of  construing  conditional  fees,  the  purposes 
for  which  they  were  intended  were  completely  frustrated ;  and, 
therefore,  the  nobility,  in  order  to  perpetuate  their  possessions 
in  their  own  families,  procured  the  Statute  of  Westm.  2,  13 
Edw.  1,  usually  called  the  statute  De  Donis  Conditionalibus, 
to  be  made  ;  which,  after  reciting  the  right  of  alienation  assumed 
by  the  donees  of  conditional  fees,  enacts  ["  That  the  will  of  the 
giver,  according  to  the  form  in  the  deed  of  gift  manifestly  ex- 
pressed, should  be  observed,  so  that  they  to  whom  a  tenement 
was  so  given  under  condition,  should  not  have  power  to  alien 
the  same  tenement,  whereby  it  should  not  remain  after  the  death 
of  the  donees,  to  their  issue,  or  to  the  donor  or  his  heir  if  issue 

failed."!] 

9.  This  statute,  as  Lord  Mansfield  has  justly  observed,  only 
repeated  what  the  law  of  tenures  had  said  before,  that  the  tenor 
of  the  grant  should  be  observed  ;  and,  therefore,  the  judges,  in 
the  construction  of  it,  held  that  where  an  estate  was  limited  to 
a  man  and  the  heirs  of  his  body,  the  donee  should  not  in  future 
have  a  conditional  fee,  but  divided  the  estates,  by  creating  a 
particular  estate  in  the  donee,  called  an  estate  tail,  subject  to 
which  the  reversion  in  fee  remained  in  the  donor,  (c) 

(a)  Plowd.  241.  (b)  1  Inst.  19.  a.  (c)  1  Burr.  115.    Plowd.  248.    2  Inst.  335. 


[  t  The  words  of  the  original  are  :  "  Dominas  rex  statuit  quod  voluntas  donatoris,  secun- 
dum formam  in  chartd  doni  sui  manifest^  e.rpressam,  de  ccetero  observetur,  ita  quod  non  ha- 
beant  Mi,  quibus  tenemcntum  sic  fuit  datum  sub  conditione.  potestatem  alienandi  tenementum 
sic  datum,  quo  minus,  ad  exitum  illorum  quibus  tenementum  sic  fuerit  datum,  remaneat  post 
eorum  obitum  ;  vel  ad  donatorem,  vet  ad  ejus  liozredem,  si  exitus  deficiat,  revertatur ;  per  hoc 
quod  nullus  sit  exitus  omnino ;  vel  si  aliquis  exitus  fuerit,  et  per  mortem  deficiet,  harede  de 
corpore  hujusmodi  exitus  deficiente."\ 


Title  II.     Estate   Tail     Ch.  I.  s.  10—12.  79 

10.  In  consequence  of  this  construction,  estates  thus  limited 
are  not  conditional ;  nor  is  the  right  of  entry  of  the  donor,  on 
failure  of  issue  of  the  donee,  considered  as  arising  from  a  breach 
of  the  condition,  but  as  a  right  of  reverter,  accruing  to  the  donor 
on  the  natural  expiration  of  the  estate  granted.  The  statute  re- 
jects the  erroneous  opinion  which  had  been  held  by  the  judges, 
that  a  donation  of  this  land  created  a  conditional  fee ;  and  de- 
clares that  it  vests  an  estate  of  inheritance  in  the  donee,  and 
some  particular  heirs  of  his,  to  whom  it  must  descend, 
notwithstanding  *  any  act  of  the  ancestor;  and  that  the  *70 
estate  of  the  donor  is  a  reversion  expectant  on  the  deter- 
mination of  that  estate,  (a) 

11.  The  statute  De  Donis  was  made  in  the  reign  of  a  prince 
who,  from  the  great  number  and  excellence  of  his  laws,  has 
justly  acquired  the  title  of  the  English  Justinian.  It  is,  there- 
fore, highly  probable  that  he  was  induced  by  some  motives 
unknown  to  modern  times,  to  give  his  assent  to  a  law,  which,  by 
allowing  the  nobility  to  entail  their  estates,  made  it  impossible  to 
diminish  the  property  of  the  great  families,  and  at  the  same  time 
left  them  all  means  of  increase  and  acquisition,  (b) 

12.  An  estate  tail  may  be  described  to  be  an  estate  of  inheri- 
tance, deriving  its  existence  from  the  statute  De  Donis  Condi- 
tionalibus  ;  which  is  descendible  to  some  particular  heirs  only  of 
the  person  to  whom  it  is  granted,  and  not  to  his  heirs  general. 
It  is  called  an  estate  tail,  or  a  fee  tail,  from  its  similarity  to  the 
feodum  talliatum,  which  appears  to  have  been  well  known  at  that 
time  ;  as  it  is  mentioned  in  the  forty-sixth  chapter  of  this  statute; 
where,  in  enumerating  several  kinds  of  estates,  it  is  said, — "  ad 
terminum  vitce,  vel  afinorum,  vel  per  feodum  talliatum."  And 
note,  (says  Littleton,  s.  18,)  that  this  word  talliare  is  the  same 
as  to  set  to  some  certainty,  or  to  limit  to  some  certain  inheritance. 
And  for  that  it  is  limited  and  put  in  certain  what  issue  shall 
inherit  by  force  of  such  gifts,  and  how  long  the  inheritance  shall 
endure,  it  is  called  in  Latin, — "  Feodum  talliatum,  i.  e.  Hcereditas 
in  quandam  certitudinem  limitata.,n 

(a)  1  Burr.  115.     Plowd.  248.     2  Inst.  335.     Plowd.  242.         (b)  1  Inst.  19.  a.  392.  b. 

1  See  Carpentier,  Glossarium,  voc.  Talliare,  2.     Ante,  Tenures,  ch.  I,  \  07. 

[The  law  of  descent  of  Massachusetts  does  not  abrogate  the  rule  of  the  common 
law  in  regard  to  estates  tail,  but  leaves  them  as  they  stood  at  common  law.  Wight  v. 
Thayer,  1  Gray,  286.] 


80  Title  II.     Estate   Tail     Ch.  I.  s.  13—16. 

13.  Tenant  in  tail  is  in  two  manners ;  tenant  in  tail  general, 
and  tenant  in  tail  special.  Where  lands  are  given  to  a  man  and 
the  heirs  of  his  body,  without  any  farther  restriction,  it  is  an 
estate  in  tail  general;  because,  how  often  soever  such  donee  in 
tail  be  married,  his  issue  by  every  such  marriage  is  capable  of 
inheriting  the  estate  tail.  But  if  the  gift  is  restrained  to  certain 
heirs  of  the  donee's  body,  exclusive  of  others,  as  where  lands 
are  given  to  a  man  and  the  heirs  of  his  body,  on  Mary  his  pres- 
ent wife  to  be  begotten,  it  is  an  estate  in  tail  special ;  and  the 
issue  of  the  donee  by  any  other  wife  is  excluded,  (a) 

14.  If  lands  are  given  to  a  person  and  the  heirs  male  of  his 
or  her  body,  this  is  called  an  estate  in  tail  male,  to  which  the 
heirs  female  are  not  inheritable.     On  the  other  side,  if  lands  are 

given  to  a  person  and  the  heirs  female  of  his  or  her  body, 
71  *       this  is  *  called   an    estate   in  tail  female,   to  which  the 

heirs  male  are  not  inheritable.  Mr.  Hargrave  says  it  is 
very  unusual  to  create  an  estate  in  tail  female  ;  that  he  had  seen 
an  argument  in  which  it  had  been  attempted  to  prove  that  the 
law  of  England  will  not  allow  of  a  descent  through  females 
only,  even  in  the  case  of  estates  tail,  but  that  other  authors,  as 
well  as  Littleton  and  Coke,  mention  such  descents ;  nor  did  he 
ever  hear  any  authority  cited  to  support  the  contrary  doctrine,  (b) 

15.  In  all  instances  of  special  entails,  which  limit  the  lands 
to  one  particular  class  of  heirs,  no  descendant  of  the  donee  can 
make  himself  inheritable  to  such  a  gift,  unless  he  can  deduce 
his  descent  through  that  particular  class  of  heirs,  to  which  the 
succession  of  the  land  was  limited.  Therefore  if  lands  be  given 
to  a  man  and  the  heirs  male  of  his  body,  and  he  has  issue  a 
daughter,  who  has  issue  a  son,  this  son  can  never  inherit  the 
estate  ;  for  being  obliged  to  claim  through  the  daughter,  he  must 
necessarily  show  himself  out  of  the  words  of  the  gift,  which 
limited  the  lands  to  the  heirs  male  only  of  the  donee,  which  the 
daughter  cannot  be.  (c) 

16.  For  the  same  reason,  if  lands  be  given  to  a  man  and  the 
heirs  male  of  his  body,  remainder  to  him  and  the  heirs  female 
of  his  body;  and  the  donee  has  issue  a  son,  who  has  issue  a 
daughter,  who  has  issue  a  son  ;  this  son  cannot  inherit  either  of 

(a)  Lit.  s.  13,  15. 

(b)  Lit.  s.  21,  22.     1  Inst.  25,  a.  n, 

(c)  Lit.  s.  24.  (Hulbert  v,  Emerson,  16  Mass.  E.  241,  213,)  Den  v.  Hobson,  2  Black.  E.  695. 


Title  II.     Estate   Tail     Ch.  I.  s.  16—20.  81 

the  estates,  because  he  cannot  deduce  his  descent  wholly  either 
through  the  male  or  the  female  line.1  (a) 

17.  It  was  formerly  a  practice  for  a  person  to  give  lands  to 
another,  as  a  marriage  portion  with  his  daughter  or  cousin,  to 
hold  to  the  husband  and  wife  in  frank  marriage ;  by  which  the 
lands  became  descendible  to  the  issue  of  such  marriage.  Thus 
Glanville  says : — Liberum  dicitur  maritagium%quando  aliquis  liber 
homo  aliquam  partem  terra?  sua?  dat,  cum  aliqud  mulicre,  alicui 
in  maritagium.  And  Finch  has  observed  that  lands  could  not 
be  given  in  frank  marriage  with  a  man  that  was  cousin  to  the 
donor  ;  but  always  with  a  woman,  (b) 

18.  The  judges  had  construed,  gifts  in  frank  marriage  in  the 
same  manner  as  donations  to  persons  and  the  heirs  of  their 
bodies ;  by  which  means  they  were  considered  to  be  conditional 
fees,  and  consequently  alienable  after  iSsue  had.  But  this  con- 
struction being  evidently  contrary  to  the  intention  of  the  persons 
who  had  created  such  estates,  the  statute  De  Donis,  after 
*reciting  the  case  of  a  gift  in  frank  marriage,  comprises  *  72 
it  in  the  remedial  part  of  that  law  ;  by  which  means  gifts 

of  this  kind  became  estates  in  tail  special,  and  the  donees  were 
restrained  from  alienating  them,  (c) 

19.  We  have  seen  that  in  consequence  of  the  statute  quia 
emptores,2  where  a  person  conveys  away  his  whole  estate,  he 
cannot  reserve  any  tenure  to  himself ;  but  this  statute  only  ex- 
tends to  those  cases  where  the  entire  fee  simple  is  transferred. 
Therefore  where  a  tenant  in  fee  simple  grants  an  estate  tail  out 
of  it,  the  tenant  in  tail  will  hold  of  the  donor,  and  not  of  the 
chief  lord,  (d) 

20.  Where  the  donor  of  an  estate  tail  grants  over  his  reversion 
to  a  stranger,  the  donee  of  the  estate  tail  will  hold  of  such 
stranger.  But  if  lands  be  given  to  A  in  tail,  with  remainder  in 
fee  to  a  stranger,  the  donee  of  the  estate  tail  will  hold  of  the 
chief  lord ;  because  the  whole  estate  is  conveyed  away,  (e) 

(a)  1  Inst.  25,  b.  (6)  Glanv.  lib.  7.  c.  18.     Finch,  B.  2.  c.  3.  29.  a. 

(c)  1  Inst.  21.  a.  (d)  Dissert,  c.  2.  s.  13.     1  Inst.  23.  a.  2—505.    Plowd.  237. 

(e)  2  Inst.  505.    2  Rep.  92.  a.     Dyer,  362.  b. 


1  To  enable  the  last  son  to  take,  the  second  limitation  should  have  been  general,  to 
the  heirs  of  the  donee. 

2  This  statute  was  never  adopted  or  held  in  force  in  Pennsylvania.    Ingersoll  v.  Sar- 
gent, 1  Whart.  337. 


82  Title  II.     Estate   Tail.     Ch.  I.  s.  21—25. 

21.  Where  the  tenant  in  tail  has  also  the  reversion  in  fee  in 
himself,  as  he  cannot  hold  of  himself,  it  being  a  maxim  in  law 
that  nemo  potest  esse  tenens  et  dominus,  he  shall  hold  of  the 
superior  lord,  (a) 

22.  The  statute  De  Donis  speaks  only  of  three  modes  of 
creating  an  estate  tail ;  namely,  by  a  gift  to  a  man  and  his  wife 
and  to  the  heirs  of  tJieir  bodies  ;  a  gift  in  frank  marriage,  and  a 
gift  to  a  person  and  the  heirs  of  his  body  issuing.  Yet  if  lands 
be  given  to  a  person  and  his  heirs,  and  if  the  donee  dies  without 
heirs  of  his  body,  that  it  shall  remain  to  another,  this  shall  be  an 
estate  tail,  by  the  equity  of  the  statute,  though  it  be  out  of  the 
words.  For  the  makers  of  the  act  did  not  mean  to  enumerate 
all  the  forms  of  estates  tail,  but  to  put  these  examples ;  so  as  all 
manner  of  estates  tail  general  or  special  are  within  the  purview 
of  the  act.  For,  as  it  is  said  by  Hales,  Justice,  at  the  common 
law,  the  intent  of  the  donor  was  infringed  and  eluded,  which 
was  contrary  to  right  and  good  conscience ;  and,  therefore,  the 
statute,  being  made  to  restrain  that  vicious  liberty  of  breaking 
such  intents,  which  was  suffered  by  the  common  law,  shall  be 
extended  by  equity,  (b)  1 

23.  With  respect  to  the  kind  of  property  on  which  the  statute 
De  Donis  was  meant  to  operate,  the  only  word  in  the  statute  is 
tenementum,  which  has  been  shown  to  signify  every  thing  that 

may  be  holden,  provided  it  be  of  a  permanent  nature  ;  so 
73  *       that  *  not    only  lands   may  be    entailed,  but  also  every 

species  of  incorporeal  property  of  a  real  nature,  as  will  be 
shown  hereafter,  (c) 

24.  Mr.  Hargrave  observes  that  two  things  seem  essential  to 
an  entail  within  the  statute  De  Donis.  1.  That  the  subject  be 
land,  or  something  of  a  real  nature.  2.  That  the  estate  in  it  be 
an  estate  of  inheritance.  It  is  not,  however,  necessary  that  the 
thing  to  be  entailed  should  issue  out  of  lands  ;  for  if  it  be  annexed 
to  lands,  or  in  any  wise  concern  lands,  or  relate  to  them,  it  may 
be  entailed,  (d) 

25.  Thus  Lord  Coke  says,  that  estovers,  common,  or   other 

(a)  Infra,  s.  38. 

(6) 2 Inst.  334.    Tit.  32.  c.  31.    Plowd.  53.     Tit.  38.  c.  12.    (Steels.  Cook,  1  Met.  281.) 

(c)  Tit.  1.  (J)  1  Inst.  20.  a.  n.  5. 

J1  Maslin  v.  Thomas,  8  Gill,  18.] 


Title  II.     Estate   Tail     Ch.  I.  s.  25—29.  83 

profits  whatsoever,  granted  out  of  land,  may  be  entailed.  So  the 
office  of  sergeant  of  the  Common  Pleas,  and  the  office  of  keeper 
of  a  church,  may  be  entailed ;  as  also  the  office  of  steward, 
receiver,  or  bailiff  of  a  manor,  (a) 

26.  It  has  been  stated  that  money  directed  to  be  laid  out  in 
the  purchase  of  land  is  considered  in  equity  as  land.  In  such 
case,  if  the  land  to  be  purchased  is  directed  to  be  conveyed  to  a 
person  in  tail,  he  will  be  considered  in  equity  as  tenant  in  tail  of 
the  money,  till  the  purchase  is  made,  (b) 

27.  As  to  inheritances  merely  personal,  which  neither  issue  out 
of,  nor  relate  to  land„or  some  certain  place,  and  which  are  not 
demandable  ut  tenementa,  in  a  praecipe,  they  cannot  be  entailed 
within  the  statute  De  Donis.  So  that  when  things  of  this  na- 
ture are  limited  to  a  person,  and  the  heirs  of  his  body,  the  donee 
takes  a  conditional  fee ;  and  may  dispose  of  the  property  as  soon 
as  he  has  issue,  (c) 

28.  An  annuity  which  only  charges  the  person  of  the  grantor, 
and  not  his  lands,  though  it  may  be  granted  in  fee,  cannot  be 
entailed.1  In  a  modern  case,  Lord  Hardwicke  held  that  an  an- 
nuity in  fee  simple,  granted  by  the  crown  out  of  the  four  and  a 
half  per  cent,  duties,  payable  for  imports  and  exports  at  the  island 
of  Barbadoes,  was  merely  a  personal  inheritance,  not  entailable 
within  the  statute  De  Donis ;  therefore,  that  being  settled  upon 
A  and  the  heirs  of  his  body,  it  was  a  conditional  fee  at  common 
law ;  so  that  A  having  issue  might  alien  it,  and  thereby  bar  the 
possibility  of  reverter,  (d) 

29.  It  was  held  by  Lord  Thurlow,  in  a  modern  case,  that  an 
annuity  granted  by  act  of  Parliament  out  of  the  revenues  of  the 

(«)  1  Inst.  20.  a.     7  Rep.  33.  b.  (6)  Tit.  1.  s.  4.     Infra,  ch.  2.  s.  65. 

(c)  llnst.  20.  a. 

(d)  1  Inst.  20.  a.  n.  5.  Stafford  v.  Buckley,  2  Ves.  170.  In  Aubin  v.  Daly,  4  B.  &  Aid. 
59,  this  annuity  was  held  to  be  personal  estate,  and  to  pass  under  a  will  attested  by  two 
witnesses  only. 

1  An  annuity  is  a  yearly  sum  of  money,  payable  to  the  grantee,  and  charging  the 
person  only  of  the  grantor.  Co.  Lit.  144,  b.  If  granted  to  the  party  and  his  heirs,  it 
is  an  incorporeal  hereditament ;  but  it  is  only  personal,  unless  the  real  estate  is  also 
charged  by  the  terms  of  the  grant ;  in  which  case  it  may  be  real  estate,  though  still 
generally  termed  an  annuity  ;  for  the  grantee  may  recover  by  writ  of  annuity,  in  which 
case  the  land  is  discharged  ;  or  he  may  distrain  for  the  arrears,  and  so  make  it  real  by 
charging  the  land.  Co.  Lit.  20,  a.  144,  b  ;  Lit.  §  219  ;  Doctor  &  Student,  ch.  30;  Mor- 
ton v.  Cook,  10  Watts,  124,  127;  2  Bl.  Comm.  40;  Aubin  v.  Daly,  4  B.  &  A.  5'J. 


84  Title  II.     Estate   Tail     Ch.  I.  s.  29—34. 

post-office,  redeemable  upon  payment  of  a  sum  of  money,  to  be 
laid  out  in  land,  was  a  personal  inheritance  only,  not  en- 
74*  tailable  *  within  the  statute  De  Donis ;  for  that  notwith- 
standing the  power  reserved  to  the  crown  of  laying  it  out 
in  land,  the  parties  had  a  right  to  treat  it  as  an  annuity  ;  and  the 
Court  of  Chancery  would  not  keep  the  objection,  of  its  being  land, 
in  contemplation  from  century  to  century,  because  of  the  possi- 
bility of  substituting  the  money  in  the  place  of  the  annuity,  (a) 

30.  All  natural  persons  capable  of  holding  estates  of  inheri- 
tance in  land,  may  be  tenants  in  tail.  And  it  was  solemnly  de- 
termined in  4  Eliz.,  that  the  king  was  within  the  statute  De 
Donis,  as  well  as  a  common  person  ;  because  the  statute  was 
made  to  remedy  the  error  which  had  crept  into  the  law,  that  the 
donee  had  the  power  of  alienating  an  estate  given  to  him,  and 
the  heirs  of  his  body,  after  issue  had;  and  to  restore  the  common 
law,  in  this  point,  to  its  right  and  just  course  ;  which  it  did,  by 
restoring  to  the  donor  the  observance  of  his  intent.  And  when 
the  statute  De  Donis  ordained  that  the  will  of  the  donor  should 
be  observed,  it  made  his  will  to  be  a  law,  as  well  against  the  king 
as  against  another.  (U) 

31.  Estates  tail,  like  estates  in  fee  simple,  have  certain  inci- 
dents inseparably  annexed  to  them,  which  cannot  be  restrained 
by  any  proviso  or  condition  whatever. 

32.  The  first  of  these  is,  that  as  a  tenant  in  .tail  has  an  estate 
of  inheritance,  he  has  a  right  to  commit  every  kind  of  waste ;  by 
felling  timber,  pulling  down  houses,  opening  and  working  mines, 
&c.  But  this  power  must  be  exercised  during  the  life  of  the 
tenant  in  tail,  for  at  the  instant  of  his  death  it  ceases.  If,  there- 
fore, a  tenant  in  tail  sells  trees  growing  on  the  land,  the  vendee 
must  cut  them  down  during  the  life  of  the  vendor,  otherwise  they 
will  descend  to  the  heir  as  parcel  of  the  inheritance,  (c) 

33.  It  is  said  by  Clark,  Justice,  in  27  Eliz.,  that  if  a  tenant 
in  tail  grants  away  all  his  estate,  the  grantee  is  dispunishable  for 
waste.  So  if  the  grantee  grants  it  over,  his  grantee  is  also  dis- 
punishable, (d) 

34.  The   Court  of  Chancery  will  not,  in  any  case  whatever, 

(a)  Hoklernesse  v.  Carmarthen,  1  Bro.  C.  C.  377. 
(J)  WUlion  o.  Berkeley,  Plowd.227.     7  Kep.  32.  a. 

(c)  Plowd.  259.     11  Eep.  50.  a. 

(d)  3  Leon.  121. 


Title  II.     Estate   Tail.   Ch.  I.  s.  34—39.  85 

restrain  a  tenant  in  tail  from  committing  waste.  Thus  Lord 
Talbot  is  reported  to  have  said  that  in  Mr.  Saville's  case,  who 
being  an  infant,  and  tenant  in  tail  in  possession,  in  a  very  bad 
state  of  health,  and  not  likely  to  live  to  full  age,  his  guardian  cut 
down  a  quantity  of  timber,  just  before  his  death.  The  remainder- 
man applied  for  an  injunction  to  restrain  him,  but  could  not 
prevail,  (a) 

*35.  A  bond  to  restrain  a  tenant  in  tail  from  committing  *  75 
waste  is  void.  Thus  where  a  person  settled  lands  on  his 
daughter,  and  the  heirs  of  her  body ;  and  took  a  bond  from  her 
not  to  commit  waste ;  the  bond  was  put  in  suit ;  but  the  Court 
held  it  to  be  an  idle  bond,  and  decreed  it  to  be  delivered  up  to 
be  cancelled,  (b) 

36.  Estates  tail  are  subject  to  the  curtesy  of  the  husband,  and 
the  dower  of  the  wife,  which  are  incidents  inseparably  annexed 
to  them,  as  will  be  noticed  under  these  titles. 

37.  It  has  been  stated  that  whenever  a  particular  estate  in 
land  vests  in  the  person  who  has  the  fee  simple  in  the  same  land, 
such  particular  estate  is  immediately  drowned  or  merged  in  it. 
In  consequence  of  this  principle,  if  an  estate  has  been  given, 
before  the  statute  De  Donis,  to  A,  and  the  heirs  of  his  body,  if 
the  fee  simple  was  limited  to  A  by  the  same  conveyance,  or  came 
to  him  afterwards,  the  estate  tail  would  have  become  merged. 
But  it  was  determined  by  the  judges  in  the  reign  of  Edward  III. 
that  an  estate  tail  could  not  be  merged,  surrendered,  or  extin- 
guished, by  the  accession  of  the  greater  estate.  So  that  a  man 
may  have  at  the  same  time,  and  in  his  own  right,  both  an  estate 
tail,  and  the  immediate  reversion  in  fee  simple,  in  the  same 
land. 

38.  The  reason  of  this  determination  was,  that  the  object  of 
the  statute  De  Donis  being  to  render  estates  tail  unalienable,  if 
they  were  allowed  to  merge  in  the  fee  simple,  an  obvious  mode 
of  destroying  them  might  have  been  adopted  by  the  tenant  in 
tail  purchasing  the  reversion,  (c) 

39.  Tenant  in  tail,  having  an  estate  of  inheritance,  has  a  right 


{a)  Talbot,  16.     Mos.  R.  224.     Att.  General  v.  Duke  of  Marlborough,  3  Mad.  498. 
(6)  Jervis  v.  Bruton,  2  Vern.  251. 
(c)  Tit.  1.    Plowd.  296.    2  Eep.  61,  a. 
VOL.  I.  8 


86  Title  II.     Estate   Tail     Ch.  I.  5.  39—41. 

to  all  deeds  and  muniments  belonging  to  the  lands  ; 1  which  the 
Court  of  Chancery  will  order  to  be  given  up  to  him.f  (a) 

40.  Tenant  in  tail  having  only  a  particular  estate,  and  not  the 
entire  property,  he  is  not  bound  to  pay  off  any  charges  or  incum- 
brances affecting  the  estate.  But  where  a  tenant  in  tail  does  pay 
off  an  incumbrance  charged  on  the  fee  simple,  the  presumption 
is  that  such  payment  was  made  in  exoneration  of  the  estate ;  be- 
cause he  may,  if  he  pleases,  acquire  the  absolute  ownership.  But 
the  tenant  in  tail  may,  by  taking  an  assignment  of  the  incum- 
brance to  a  trustee  for  himself,  or  by  several  other  acts,  charge 

the  estate  with  the  payment  of  such  incumbrance.  (b~) 
76  *  *  41.    The    Earl   of   Shrewsbury  being  tenant  in   tail 

under  an  act  of  Parliament,  which  restrained  him  from 
alienation,  unless  he  conformed  to  the  established  religion,  and 
being  a  Roman  Catholic,  paid  off  a  sum  of  £15,000  charged  on 
the  estate  for  his  sisters'  portions,  without  taking  any  assignment 
of  the  term  by  which  that  sum  was  secured,  or  any  declaration 
of  trust  of  it  for  himself.  In  1751,  Lord  S.,  by  deed,  reciting  that 
he  was  seised  of  the  freehold,  subject  to  this  charge,  that  he  had 
paid  off  the  portion  of  one  of  his  sisters,  and  part  of  the  portion 
of  another,  and  that,  as  none  of  the  portions  had  been  raised 
under  the  terms,  he  had  a  right  to  have  them  raised  for  himself; 
he,  in  consideration  of  .£1,000,  conveyed  an  advowson,  being  part 
of  the  premises  comprised  in  the  term,  to  one  Robinson ;  the 
trustees  consented,  and  were  parties,  upon  condition  that  the 
consideration  should  go  in  discharge  of  the  portions.  Lord  S. 
died  in  1787,  leaving  a  will ;  but  without  taking  any  notice  of 
his  right  to  be  reimbursed  this  sum,  or  doing  any  other  act  by 
which  his  intention  could  be  known.     A  bill  was  brought  by  his 

(a)  Papillon  v.  Voice,  2  P.  Ws.  471. 

(6)  Jones  v.  Morgan,  1  Bro.  K.  206.     Tit.  12,  c.  3,  s.  12.     Kirkham  r.  Smith,  tit.  15,  c.  4. 

1  la  the  United  States,  it  is  the  general  practice  for  the  grantor  to  retain  his  own 
title  deeds,  instead  of  delivering  them  over  to  the  grantee ;  and  the  grantee  is  not  ordi- 
narily bound,  in  deducing  his  title,  to  produce  any  original  deeds  to  which  he  was  not 
a  party;  but,  the  practice  of  registration  being  universal,  he  is  permitted  to  read  in 
evidence  certified  copies  from  the  Registry,  of  all  such  deeds  of  which  he  is  not  sup- 
posed to  have  the  control.  1  Greenl.  on  Evid.  §  571,  note  (3.)  Whether,  therefore,  a 
Court  of  Equity  would  here  decree  the  delivery  over  of  such  title  deeds,  may  be  ques- 
tioned.    See  post,  tit.  32,  ch.  11,  §  19,  note. 

[  t  He  who  is. entitled  to  the  land  has  also  a  right  to  the  title  deeds  affecting  it. 
Harrington  v.  Price,  3  Barn.  &  Adol.  170.] 


Title  II.     Estate   Tail.     Ch.  I.  s.  41—42.  87 

personal  representative  against  the  next  tenant  in  tail,  and  the 
trustees  of  the  term,  praying  that  they  might  be  compelled  to 
raise  such  sums  as  were  paid  by  the  late  earl  to  his  sisters.  Lord 
Thurlow  said  that,  in  the  transaction  of  1751,  respecting  the 
advowson,  there  was  a  perfect  and  distinct  recognition  that  the 
circumstance  of  paying  off  the  charge  did  make  Lord  S.  a  credi- 
tor ;  and  decreed  for  the  plaintiff,  (a) 

42.  It  was  formerly  held  that  a  tenant  in  tail  was  not  even 
bound  to  pay  the  interest  of  any  incumbrances  charged  on  the 
estate ;  but  it  has  since  been  resolved  that  in  some  cases  he  is 
bound  to  keep  down  the  interest.  (6) 

(a)  Shrewsbury  v.  Shrewsbury,  1  Ves.  Jun.  227.     15  Ves.  173. 

(b)  Tit.  15,  c.  4. 


CHAP.  II. 

POWER    OF     TENANT     IN     TAIL     OVER     HIS    ESTATE,    AND    MODES    OF 

BARRING    IT. 


Sect.     1.   Could  only  alien  for  his  own 
Life. 
4.  His  Alienation  not  absolutely 

void. 

G.   Sometimes  a  Discontinuance. 

11.   Sometimes  voidable  by  Entry. 

13.   When  it  creates  a  base  Fee. 

1G.   Cannot  limit    an   Estate   to 

commence  after  his  Death. 

19.  Exception. 

20.  The  Issue  not  bound  by  his 

Ancestor's  Contracts. 


Sect.  27.   Unless  he  confirms  them. 

29.  Nor  subject  to  his  Debts. 

30.  Except  Crown  Debts. 

35.  Tenants  in  Tail  may  make 

Leases. 

36.  Are  subject  to  the  Bankrupt 

Laws. 

37.  And  to  Forfeiture  for  Trea- 

son. 

43.  But  not  for  Felony. 

44.  Modes   of    barring    Estates 

Tail. 


Section  1.  The  statute  De  Donis  effecting  a  perpetuity 
restrained  the  tenant  in  tail  from  alienating  his  estate,  by  any 
mode  whatever,  for  a  greater  interest  than  that  of  his  own  life. 
Thus  Littleton  says,  s.  650,  "  If  tenant  in  tail  grants  all  his  estate 
to  another,  the  grantee  has  no  estate  but  for  term  of  life  of  the 
tenant  in  tail,  and  the  reversion  of  the  tail  is  not  in  the  tenant  in 
tail ;  because  he  has  granted  all  his  estate,  and  his  right,"  &c. 

2.  It  is,  however,  observable,  that  the  wrords  of  the  statute  De 
Donis,  by  which  the  alienation  of  an  estate  tail  is  prohibited, 
only  extend  to  the  original  donee,  and  not  to  his  issue — nee 
habeant  Mi,  quibus  tenementum  sic  fuerit  datum,  potestatem 
alienandi.  But  still  the  prohibition  was  extended  by  the  judges 
to  the  issue  in  infinitum.  And  Broke  says,  the  omission  of  the 
heirs  of  the  donee  in  the  statute,  was  a  misprision  of  the 
clerk,  (a) 

3.  Lord  Coke,  in  his  comment  on  this  statute,  says, — "  It  was 
adjudged  by  Beresford  that  the  issues  in  tail  should  not  alien, 

(a)  Plowd.  13.    T.  Jones,  239.    Ab.  Tit.  Pari.  91. 


Title  II.     Estate   Tail.   Ch.  II.  5.  3—7.  89 

*  no  more  than  they  to  whom  the  land  was  given,  and  that  *  78 
was  the  intent  o£  the  makers  of  the  act ;  and  it  was  but 
their  negligence  that  it  was  omitted,  as  there  it  is  said.  In  this 
case  by  way  of  purchase,  the  land  is  given  to  the  donees,  and  by 
way  of  limitation  to  the  issues  in  tail ;  and,  therefore,  by  a  benign 
interpretation,  the  purview  of  this  extends  to  the  issues  in  tail." (a) 

4.  Although  the  statute  De  Donis  restrained  tenants  in  tail 
from  alienating  their  estates  for  any  longer  interest  than  that  of 
their  own  lives ;  yet  this  must  not  be  understood  literally,  that 
the  grantee  had  only  an  estate  for  the  life  of  the  tenant  in  taib 
which  determined  ipso  facto  by  the  death  of  the  tenant  in  tail. 
All  that  was  meant,  was,  that  the  grantee's  estate  was  certain 
and  indefeasible  during  the  life  of  the  tenant  in  tail  only,  upon 
whose  death  it  became  defeasible  by  his  issue,  or  the  remainder- 
man or  reversioner,  (b) 

5.  It  was,  however,  otherwise,  where  any  thing  was  granted 
out  of  an  estate  that  was  entailed,  as  a  rent,  &c. ;  for  such  grant 
became  absolutely  void  by  the  death  of  the  grantor,  and  could 
never  be  made  good,  (c) 

6.  The  law  considers  the  tenant  in  tail  as  having  not  only  the 
possession,  but  also  the  right  of  possession  and  inheritance,  in 
him  ;  he  has,  therefore,  been  allowed  to  alienate  them  by  certain 
modes  of  conveyance,  so  as  to  take  away  the  entry  of  the  issue, 
and  drive  him  to  his  action,  which  is  called  a  discontinuance. 
For — "  seeing  he  had  an  estate  of  inheritance,  the  judges  com- 
pared it  to  the  case  where  a  man  was  seised  in  right  of  his  wife, 
or  a  bishop  in  right  of  his  bishopric,  or  an  abbot  in  right  of  his 
monastery."  (d) 

7.  An  estate  tail  might,  at  the  common  law,1  be  discontinued  by 
five  different  modes  of  conveyance;  namely,  by  a  feoffment,  fine, 
release,  confirmation,  (the  two  latter  accompanied  with  warranty,),2 
and  by  a  recovery  not  duly  suffered,  as  where  there  is  no  voucher 

(a)  2  Inst.  336.  {b)  2  Ld.  Raym.  779.  (c)  Walter  v.  Bould,  Bulst.  32. 

((/)  Lit.  s.  595.    2  Inst.  335.  1—325.  a. 

1  Now  altered  in  England  by  Statutes  3  &  4  W.  4,  c.  27  &  74. 

2  There  can  be  no  discontinuance  without  transmutation  of  the  possession.  But  a 
bargain  and  sale,  covenant  to  stand  seised,  or  release,  with  a  general  warranty  annexed, 
may  produce  a  discontinuance,  when  the  warranty  descends  upon  him  who  has  right  to 
the  lands  ;  though  not  if  it  descends  upon  a  stranger.  Co.  Lit.  329,  a. ;  Stevens  v.  Win- 
ship,  1  Pick.  318,  328 ;  and  see  Mayson  v.  Sexton,  1  Har.  &  McHen.  275  ;  Hopkins  v. 
Thrclkeld,  3  Har.  &  McHen.  443. 

8*      . 


90  Title  II.     Estate  Tail.     Ch.  II.  s.  7—12. 

over  of  tenant  in  tail,  so  as  to  bar  the  issue  or  remainders  over. 
A  recovery  duly  suffered  has  been  sometimes  termed  a  discontinu- 
ance, but  from  its  peculiar  operation  it  is  an  absolute  conveyance 
by  the  tenant  in  tail,  (a) 

8.  No  discontinuance,  strictly  speaking,  could  be  effected  by 

what  was  termed  an  innocent  conveyance  of  the  tenant 
79  *      in  tail  in  *  possession,  such  as  lease  and  release,  covenant 
to  stand  seised,  or  bargain  and  sale  and  grant. 

9.  The  effect  of  a  discontinuance  was  to  pass  a  fee  simple 
under  a  new  and  wrongful  title,  and  to  devest  the  estates  in  re- 
mainder and  reversion,  taking  away  from  the  discontinuees  their 
right  of  entry,  and  putting  them  to  their  right  of  action.  And 
to  work  a  discontinuance,  the  tenant  in  tail  must  be  tenant  in 
tail  in  possession.  (&) 

10.  But  where  the  reversion  and  remainder  could  not  be  dis- 
continued, the  tenant  in  tail  could  not  discontinue  the  estate 
tail ;  as  where  the  reversion  or  remainder  was  in  the  crown ;  for 
the  king  is  a  body  politic,  of  all  others  most  high  and  worthy, 
out  of  whose  person  no  estate  of  inheritance  or  freehold  can  pass 
or  be  removed  without  matter  of  record,  (c) 

11.  A  tenant  in  tail  might  also,  by  the  common  law,  alienate 
his  estate  by  other  modes  of  conveyance,  which  only  transferred 
the  possession,  not  the  right  of  possession.  These  alienations  by 
innocent  assurances  did  not  become  ipso  facto  void  by  the  death 
of  the  tenant  in  tail ;  but  must  have  been  avoided  by  the  entry  of 
the  issue.  Thus,  if  a  tenant  in  tail  exchanged  his  estate  with  a 
tenant  in  fee  simple,  it  would  be  good,  till  avoided  by  the  entry 
of  the  issue  in  tail,  (d) 

12.  But  by  the  Stat.  3  &  4  Will.  4,  c.  74,  s.  2,  14,  fines, 
recoveries,  and  warranties  of  land,  are  abolished  from  the  31st 
December,  1833 ;  and  by  the  statute  of  limitations,  ib.  c.  27,  s. 
39,  it  is  enacted,  "  That  no  discontinuance  1  or  warranty  which 

(a)  Co.  Lit.  325.  a.  b.    2  Burr.  704. 

{b)  Co.  Lit.  327.  b.  Lit.  s.  599.  Doe  v.  Finch,  4  Bar.  &  Adol.  283.  Doe  v.  Jones,  1  Cr. 
&  Jer.  528.     Driver  v.  Hussey,  1  H.  Bl.  269.     Doe  v.  Jones,  1  B.  &  Cr.  238,  243. 

(c)  Co.  Lit.  s.  625.  335.  a.  ,  Walsingham's  case.  Plowd.  552,  562.  See  also  3-&  4  Will. 
4.  c.  74.  s.  18. 

(d)  Seymour's  case.     Tit.  35.  c.  12.    2  Ld.  Eaym.  779,  782.     7  T.  R.  278.     1  Inst.  51.  a. 

1  So,  in  Massachusetts,  by  Rev.  Stat.  ch.  101,  §  5.  And  in  Maine,  Rev.  St.  1840, 
ch.  145,  §  8.     It  seems  that  in  all  the  United  States,  where  entails  are  either  expressly 


Title  II.     Estate  Tail.     Ch.  II.  s.  12—15.  91 

may  happen  or  be  made  after  that  day,  shall  defeat  any  right  of 
entry  or  action  for  the  recovery  of  land."  It  is  conceived,  there- 
fore, that  no  discontinuance,  according  to  its  strict  legal  import, 
can  be  effected  after,  the  period  specified  in  the  above  acts ;  for 
whatever  may  be  the  form  of  discontinuance,  the  above  statute 
takes  away  its  effect.  By  the  tenth  section  of  the  latter  act  it  is 
enacted,  "  That  a  mere  entry  shall  not  be  deemed  possession 
within  the  meaning  of  the  act."  f 

*  13.  Where,  at  the  common  law,  the  tenant  in  tail  *  80 
aliened  the  fee  by  any  form  of  conveyance,  other  than  a 
valid  common  recovery,  his  alienee  had  primd  facie  only  an  estate 
of  inheritance,  descendible  to  his  heirs  as  long  as  the  tenant  in 
tail  had  issue  inheritable  under  the  entail,  which  was  called  a 
base  or  qualified  fee.  Where  this  alienation  was  by  what  was 
termed  an  innocent  conveyance,  the  estate  of  the  alienee,  upon 
the  death  of  the  tenant  in  tail,  could  be  avoided  by  the  entry  of 
the  issue  in  tail ;  where  the  alienation  was  made  by  feoffment, 
without  fine,  or  by  fine  without  proclamations  or  recovery  not 
duly  suffered,  the  issue  were  put  to  their  action  in  order  to  avoid 
the  fine.  Where,  however,  a  fine  was  duly  levied  with  procla- 
mations by  the  tenant  in  tail,  both  the  entry  and  action  of  the 
issue  were  taken  away.  Until  this  base  fee  was  determined,  it 
had  all  the  incidents  of  an  estate  in  fee  simple,  (a) 

14.  The  expression  base  fee  in  the  above  act,  means  exclusively 
that  estate  in  fee  simple,  into  which  an  estate  tail  is  converted 
where  the  issue  in  tail  are  barred  ;  but  the  person  claiming  estates 
in  remainder  are  not  barred.  (6) 

15.  Before  the  late  statute  for  abolishing  fines  and  recoveries, 
where  a  tenant  in  tail  made  a  conveyance  in  fee  for  a  valuable 
consideration,  the  Court  of  Chancery  would  decree  him  to  make 
a  good  title.  Mr.  Justice  Wright  is  reported  to  have  said  that 
the  Court  would  not  point  out  what  title  the  tenant  in  tail  should 

(«)  (Whiting  v.  Whiting,  4  Conn.  R.  179.)    Tit.  35.  c.  9. 
(6)  Stat.  3  &  4  Will.  4.  c.  74.  s.  1. 


abolished,  or  the  tenant  is  authorized  to  bar  them  by  a  conveyance  in  fee  simple,  there 
can  no  longer  be  a  discontinuance  of  the  freehold,  in  the  strict  sense  of  that  phrase. 
Stearns  on  Real  Actions,  p.  70.     See  post,  tit.  29,  ch.  1,  §  13—15. 

[  t  This  statute  does  not  relate  to  Ireland,  except  where  expressly  named,  s.  92  ;  and 
the  reader's  attention  to  this  important  exception  is  requested  in  reference  to  all  the 
notices  of  the  Stat.  3  &  4  Will.  4,  c.  74.] 


92  Title  II.     Estate  Tail.     Ch.  II.  5.  15—18. 

make,  but  would  decree  him  to  make  such  title  as  he  is  capable 
of  doing,  (a) 

16.  By  the  common  law,  where  a  tenant  in  tail  limited  an 
estate  to  commence  after  his  own  death,  it  was  absolutely  void ; 
and  he  continued  to  be  tenant  in  tail  as  before ;  because  there 
the  issue  in  tail  had  a  right  paramount,  per  for  mam  doni. 

17.  A  tenant  in  tail  covenanted  to  stand  seised  to  the  use  of 
himself  for  life,  after  to  the  use  of  his  eldest  son,  and  his  heirs. 
It  was  resolved  that  the  son  should  not  have  the  land  by  this 
covenant ;  for  when  the  tenant  in  tail  covenanted  to  stand  seised 
to  the  use  of  himself  for  life,  it  was  as  much  as  he  could  law- 
fully do.     The  limitation  over  was  void ;  and  he  was  seised  as 

before,  (b) 
81  *  *  18.  A  tenant  in  tail  covenanted,  in  consideration  of 

natural  love  and  affection,  to  stand  seised  to  the  use  of 
himself  for  life,  remainder  to  his  eldest  son  in  tail,  &c.  The 
question  was,  whether  the  tenant  in  tail  had  made  any  alteration 
in  his  estate  by  this  covenant. 

Lord  Chief  Justice  Holt  delivered  the  opinion  of  the  Court. 
He  said  it  had  been  made  a  question  if  tenant  in  tail  bargained 
and  sold,  or  leased  or  released,  or  covenanted  to  stand  seised  of 
lands  entailed,  to  another  in  fee,  whether  the  estate  conveyed 
determined  by  the  death  of  the  tenant  in  tail,  or  continued  till 
the  actual  entry  of  the  issue  in  tail.  He  held  that  such  estate 
continued  till  the  actual  entry  of  the  issue  in  tail,  for  these 
reasons  :  1.  Because  tenant  in  tail  had  an  estate  of  inheritance 
in  him  ;  and  before  the  statute  De  Donis,  it  was  held  that  such 
estate  was  a  fee  simple  conditional.  Then  the  statute  made  no 
alteration  as  to  the  tenant  in  tail  himself,  but  only  made  provision 
that  the  issue  in  tail  should  not  be  disinherited  by  the  alienation 
of  his  ancestor.  2.  The  tenant  in  tail  had  the  whole  estate  in 
him ;  therefore  there  was  no  reason  why  he  could  not  divest 
himself  of  it,  by  grant,  bargain,  and  sale,  &c,  since  the  power  of 
disposition  was  incident  to  the  property  of  every  one.  3.  It  was 
no  prejudice  to  the  issue  in  tail,  therefore  no  breach  of  the  statute 
De  Donis.  4.  That  in  this  case  the  covenant  to  stand  seised 
did  not  alter  the  estate  tail,  but  it  still  continued.  The  reason 
was,  that  though  the  tenant  in  tail  might  make  a  conveyance  of 

(a)  Sutton  v.  Stone,  2  Atk.  101.  j| 

(b)  Bedingfield's  case,  Cro.  Eliz.  895.    2  Rep.  52.  a.    Blitbman's  case,  tit.  6.  c.  3. 


Title  II.    Estate   Tail.     Ch.  II.  s.  18—21.  93 

the  estate  in  his  lifetime,  which  should  be  good  and  binding,  till 
avoided  by  the  issue ;  yet  any  conveyance  which  he  made  to 
commence  after  his  death,  should  be  void;  if  by  possibility  it 
might  not  take  effect  during  his  life. 

What  was  the  reason  that  such  estate  was  void,  when  it  was 
limited  to  commence  after  the  death  of  tenant  in  tail  ?  It  was 
because  it  was  to  commence  at  a  time  when  the  right  of  the 
estate,  out  of  which  it  would  issue,  was  in  another  person  by  a 
title  paramount  to  the  conveyance,  viz.,  per  formam  doni.  A 
tenant  in  tail  had  an  estate  out  of  which  he  might  carve  other 
estates,  provided  he  did  it  out  of  the  estate  in  himself,  so  as  to 
make  it  rightful  in  its  creation,  but  otherwise  not.  For  it  would 
be  injurious  to  make  good  a  lease,  or  other  estate,  com- 
mencing *upon  the  right  of  another,  whose  title  was  *83 
paramount  to  the  lease  or  estate  so  made.  In  the  princi- 
pal case,  the  issue  in  tail  had  a  title  paramount,  the  title  of  the 
remainder,  by  virtue  of  the  covenant,  the  very  minute  the  re- 
mainder would  take  effect;  that  was  the  only  true  reason; 
therefore  to  make  such  an  estate  to  take  effect  upon  the  posses- 
sion of  the  issue,  whose  title  was  paramount,  would  be  to  make 
an  estate  take  effect  by  wrong,  the  very  minute  it  had  its  creation. 
It  was,  therefore,  adjudged,  that  the  remainder  was  void,  and  the 
estate  tail  not  altered,  by  this  covenant,  (a) 

19.  It  was,  however,  laid  down  in  the  preceding  case,  that  an 
estate  created  by  a  tenant  in  tail,  which  must,  or  by  possibility 
might,  commence  in  the  lifetime  of  the  tenant  in  tail,  was  good. 

20.  The  issue  in  tail  is  not  bound,  either  at  law  or  in  equity, 
to  complete  any  contract  or  agreement  made  by  his  an- 
cestor, *  respecting  the  estate  tail ;  because  the  issue  claims       *  84 
per  formam  doni,  from  the  person  by  whom  the  estate  tail 

was  originally  granted,  not  from  his  immediate  ancestor-!  (b) 

21.  It  was  formerly  held  that  a  covenant  by  a  tenant  in  tail 

(a)  Machell  j?.  Clarke,  2  Ld.  Rayra.  778.  7  Mod.  IS.  11—19.  2  Eden.  R.  357.  Vide  tit. 
32.  c.  10  &  11.    7  Mod.  26.     Doe  ft  Rivers,  tit.  5.  c.  2. 

(b)  (Partridge  ft  Dorsey,  3  H.  &  J.  302.) 

[  t  By  the  Stat.  3  &  4  Will.  4,  c.  74,  s.  40,  it  is  provided  that  no  disposition  by  a 
tenant  in  tail,  resting  only  in  contract,  either  express  or  implied,  or  otherwise,  and 
whether  supported  by  a  valuable  or  meritorious  consideration  or  not,  shall  be  of  any 
force  at  law  or  in  equity,  under  the  act,  notwithstanding  such  disposition  shall  be  made 
or  evidenced  by  deed.] 


94  Title  II.     Estate   Tail.     Ch.  II.  5.  21—28. 

to  levy  a  fine,  upon  a  valuable  consideration,  and  a  decree  of  the 
Court  of  Chancery  that  he  should  do  so,  would  bind  the  issue  in 
tail.  This  doctrine  was,  however,  soon  altered,  and  it  was  de- 
termined that  a  court  of  equity  cannot  dispense  with  any  of  those 
forms  which  the  law  requires  to  bar  estates  tail,  (a) 

22.  A  tenant  in  tail  made  a  mortgage,  without  levying  a  fine, 
with  a  covenant  for  further  assurance,  and  died.  Lord  Keeper 
Bridgeman  would  not  compel  the  issue  to  make  the  assurance 
good;  though  the  father  might  have  done  it  by  fine  or  re- 
covery, (b) 

23.  A  tenant  in  tail  entered  into  articles,  concerning  his  lands, 
for  payment  of  his  debts  ;  but  died  without  doing  any  act  to  de- 
stroy the  estate  tail.  It  was  decreed  that  this  argument  could 
not  be  executed  against  the  heir  in  tail,  (c) 

24.  A  decree  was  obtained  against  a  tenant  in  tail,  who  had 
contracted  for  the  sale  of  his  estate,  and  received  a  great  part  of 
the  consideration,  to  compel  him  to  levy  a  fine,  and  suffer  a  re- 
covery. The  tenant  in  tail  stood  out  all  process  against  him,  to 
a  contempt,  and  died.  A  bill  was  then  brought  against  his  issue 
to  revive  the  decree  against  him,  which  was  dismissed,  (d) 

25.  A  tenant  in  tail  covenanted  to  settle  a  jointure  on  his  wife. 
In  order  to  perform  his  covenant,  he  acknowledged  a  fine,  but 
died  before  it  was  perfected.  The  Court  of  Chancery  refused  to 
supply  this  defect  against  his  issue,  (e) 

26.  Where  a  person  is  prevented  from  barring  an  estate  tail 
by  force  and  management,  the  Court  of  Chancery  will  compel 
the  parties  to  act  as  if  the  recovery  had  been  suffered.  (/) 

27.  If  the  issue  in  tail  does  any  act  towards  carrying  the  con- 
tract or  agreement  of  his  ancestor  into  execution,  it  will  then 
become  binding  on  him ;  and  he  will  be  compelled  in  equity  to 
perform  it. 

28.  Francis  Ross  having  issue,  James  his  legitimate  son, 

85  *      and  *  John  a  bastard,  devised  lands  to  John  in  tail.    James 

having  copyhold  lands  by  descent,  James  and  John  agreed 

to  exchange  their  estates.     The  agreement  being  executed,  James 

obtained  a  decree  against  John  to  levy  a  fine  of  his  estate  tail, 

(a)  3  Rep.  41.  b.  1  P.  Wms.  271.  2  Ves.  634.  Hill  v.  Carr,  1  Cha.  Ca.  294.  Cavendish 
v.  Worsley,  Hob.  203.    2  Vent.  350. 

(b)  Jenkins  v.  Keymes,  1  Lev.  237.  (c)  Herbert  v.  Tream,  2  Ab.  Eq.  28. 

(«Z)  Sangon  v.  Williams,  Gilb.  R.  164.     Weale  v.  Lower,  2  Vern.  306.     1  P.  Wms.  720. 
(e)  Wharton  v.  Wharton,  2  Vern.  3.  (/)  Luttrell  v.  Olmius,  tit.  36.  c.  11. 


Title  II.     Estate   Tail.     Ch.  II.  s.  28—31.  95 

and  by  that  means  to  settle  it  on  James.  John  died  in  contempt 
for  not  obeying  the  decree ;  his  issue  entered  on  the  copyhold 
estate,  and  continued  in  the  enjoyment  of  it ;  in  consequence  of 
which  a  bill  was  filed  against  him  by  James,  to  perform  the 
agreement  made  by  his  father.  It  was  said  by  the  Court,  that  if 
a  tenant  in  tail  agrees  to  convey,  he  is  bound  by  that  agreement ; 
if  he  dies  without  performing  it,  his  issue  is  not  bound  to  perform 
it.  But  if  the  issue  accepts  of  the  agreement,  and  enters,  as  in 
this  case,  on  the  lands,  it  then  becomes  his  own  agreement,  and 
will  bind  him.     So  decreed  against  the  defendant,  (a) 

29.  The  issue  in  tail  is  not  subject  to  any  of  the  debts  or 
incumbrances  of  his  ancestor.  Therefore,  if  a  tenant  in  tail 
acknowledges  a  statute  or  recognizance,  upon  which  the  land 
entailed  is  extended,  the  issue  in  tail  may  enter,  upon  the  death 
of  the  ancestor,  and  oust  the  creditor,  (b) 

30.  Estates  tail  were  not  originally  liable,  in  the  hands  of  the 
issue,  to  the  payment  of  debts  due  by  the  ancestor  to  the  crown. 
But  it  is  enacted  by  the  Statute  33  Hen.  8,  c.  39,  s.  75,  that 
all  manors,  lands,  tenements,  and  hereditaments,  which  shall 
come  or  be  in  the  possession  of  any  person  or  persons  to  whom 
the  same  shall  descend,  revert,  or  remain  in  fee  simple,  or  in  fee 
tail  general  or  special,  by,  from,  or  after  the  death  of  any  of  his 
or  their  ancestors,  whose  heir  he  is ;  which  said  ancestor  or 
ancestors  was  or  shall  be  indebted  to  the  king,  or  to  any  person 
or  persons  to  his  use,  by  judgment,  recognizance,  obligation,  or 
any  other  specialty,  the  debt  whereof  shall  not  be  paid  ;  then  and 
in  such  case  the  same  manors,  &c,  shall  be  and  stand  charged 
and  chargeable  to  and  for  the  payment  of  the  said  debt. 

31.  Upon  the  construction  of  tin's  act,  it  was  resolved  by  the 
barons  of  the  Exchequer  in  41  Eliz.,  on  conference  had  with 
Popham,  Ch.  J.,  and  divers  other  justices, — 1.  That  before  this 
statute,  if  tenant  in  tail  became  indebted  to  the  king  by  judg- 
ment, recognizance,  obligation,  or  otherwise,  and  died,  the  king 
should  not  extend  the  land  in  the  seisin  of  the  issue  in  tail ;  for 
the  king  was  bound  by  the  statute  De  Donis ;  as  it  was 
adjudged  *  in  Lord  Berkeley's  case.  2.  That  if  the  tenant  *  86 
in  tail  becomes  indebted  to  the  king,  by  the  receipt  of  the 
king's  money,  or  otherwise,  unless  it  be  by  judgment,  recog. 
nizance,  obligation,  or  other  specialty,  and  dies  ;  the  land  in  the 

(«)  Ross  v.  Ross,  1  Cha.  Ca.  171.  (6)  Bro.  Ab.  tit.  Recogn.  pi.  7.     Tit.  14. 


96  Title  II.     Estate  Tail.     Ch.  II.  s.  31—33. 

seisin  of  the  issue  in  tail  shall  not  be  extended  for  such  debt  of 
the  king's.  For  this  statute  extends  only  to  the  said  four  cases  ; 
and  all  other  debts  remain  at  common  law.  3.  That  if  tenant 
in  tail  becomes  indebted  to  the  king  by  one  of  the  four  ways 
above  mentioned  in  the  said  act,  and  dies  ;  and,  before,  any  pro- 
cess or  extent,  the  issue  in  tail,  bond  fide,  aliens  the  land,  it  shall 
not  be  extended  by  force  of  the  said  act.  For,  as  it  appears  by 
the  words  thereof,  it  makes  the  land,  in  the  possession  or  seisin 
of  the  heir  in  tail  only,  liable  against  the  issue  in  tail,  and  not 
the  alienee.  For  the  makers  of  the  act  had  reason  to  favor  the 
purchaser,  farmer,  &c,  of  the  heir  in  tail,  more  than  the  heir 
himself;  because  they  are  strangers  to  the  debts  of  the  tenant 
in  tail  and  came  to  the  land  bond  fide,  on  good  consideration. 
4.  That  a  debt  originally  due  to  a  subject,  to  which  the  king 
becomes  entitled  by  attainder,  forfeiture,  gift  of  the  party,  or  any 
other  collateral  way,  was  not  within  the  statute;  which  only 
extended  to  debts  originally  due  to  the  king,  by  judgment,  re- 
cognizance, obligation,  or  other  specialty,  (a) 

32.  Where  a  person  takes  an  estate  tail  by  gift  from  his  ances- 
tor, on  good  consideration,  such  estate  is  not  liable  to  a  debt  of 
the  ancestor,  contracted  after  the  gift  was  made. 

33.  Foskew  being  seised  in  fee  of  the  manor  of  S,  in  consider- 
ation of  his  son's  marriage,  covenanted  to  levy  a  fine  of  the  said 
manor  to  the  use  of  himself  and  his  wife  for  their  lives,  remainder 
to  the  use  of  his  son  and  his  wife,  and  the  heirs  of  their  bodies. 
A  fine  was  levied  accordingly.  Foskew  afterwards  acknowledged 
a  recognizance  to  Queen  Elizabeth,  and  died  indebted  to  the 
crown.  The  manor  of  S  was  extended  for  the  queen's  debt. 
It  was  argued  by  Coke,  that  the  manor  was  not  chargeable  by 
the  Stat.  33  Hen.  8.  For  the  object  of  that  statute  was  to 
make  lands  entailed  liable  to  the  king's  debts,  where  they  were 
not  so  before,  against  the  issue.  But  the  words,  "  was  or  ^liall 
be  indebted,"  should  not  be  intended  after  the  gift  made:  —  That, 
"  shall  be,"  was  to  be  intended  of  future  debts,  after  the  statute  ; 
whereas,  at  the  time  of  the  settlement,  Foskew  was  not  receiver 

or  other  officer  to  the  queen: — That  this  was  not  within 
87*       the   *  statute;    for  the   words  were,   by   gift   of  his    an- 
cestors.    Here  the  son  had  not  the  manor  by  gift  of  his 

(a)  Anderson's  case,  7  Rep.  21.   Ante,  c.  1.  s.  30.    Tit.  1.  s.  68. 


Title  II.     Estate   Tail.     Ch.  II.  s.  33—36.  97 

father,  but  rather  by  the  statute  of  uses ;  and  so  he  was  in  the 
post,  not  in  the  per,  by  his  ancestor ;  for  the  fine  was  levied  to 
divers  persons,  to  the  uses  aforesaid.  Nor  was  the  gift  a  mere 
oratuity,  but  in  consideration  of  marriage  ;  and  the  debt  accrued 
not  till  after  the  gift.  He  admitted  that  if  there  had  been  any 
fraud  in  the  case,  or  any  purpose  in  Foskew,  when  he  made  the 
conveyance,  to  become  the  king's  debtor  or  officer,  it  would  be 
within  the  statute,  and  the  gift  had  been  a  mere  gratuity.  Re- 
solved that  the  lands  should  be  discharged,  (a) 

34.  One  Hawthorn  having  an  office  which  rendered  him  an 
accountant  to  the  crown,  became  indebted  to  Queen  Elizabeth 
by  obligation.  Two  years  after  he  covenanted  with  one  Cox- 
head,  in  consideration  of  his  son  marrying  his  daughter,  to  stand 
seised  to  the  use  of  himself  for  life,  remainder  to  the  use  of  Cox- 
head  and  his  daughter  in  tail.  Hawthorn  afterwards  accepted 
another  office  of  account,  by  reason  of  which  he  became  in- 
debted to  the  crown,  and  committed  suicide.  The  crown  having 
seized  his  lands,  Coxhead  petitioned  that  they  might  be  dis- 
charged ;  to  which  it  was  answered,  that  the  lands  were  subject 
to  what  was  due  to  the  crown  by  reason  of  the  first  office,  which 
he  had  before  the  conveyance,  by  the  Stat.  13  Eliz. ;  but  as  to 
the  office  which  he  had  accepted  after  the  conveyance,  the  ar- 
rears of  that  was  not  a  charge  upon  the  lands  conveyed.  Upon 
Coxhead's  paying  the  arrears  of  the  first  office,  he  had  an  amo- 
veas  manus.  (b) 

35.  In  conformity  to  the  principle  that  a  tenant  in  tail  can 
only  alien  or  charge  his  estate  for  his  own  life,  all  leases  made 
by  tenants  in  tail  might  have  been  avoided  after  their  death,  by 
their  issue.  But  by  the  Statute  32  Hen.  8,  c.  28,  tenants  in 
tail  are  enabled  to  make  leases  for  three  lives,  or  twenty-one 
years,  which  shall  bind  their  issue;  though  not  the  persons  in 
remainder,  or  the  reversioner.1  (c) 

36.  Where  a  bankrupt  was  tenant  in  tail  in  possession,  the 
commissioners  of  bankrupts,  under  the  21st  Jac.  1,  c.  19,  s.  12, 
were  enabled  to  convey  the  fee  simple  of  the  lands.     Where  he 

(a)  Foskew's  case,  2  Leon.  90.        (b)  Coxhead's  case,  Moo.  126.        (c)  Tit.  32,  c.  5. 


i  In  Maryland,  the  tenant  in  tail  may  bind  his  issue  by  any  lease  or  conveyance  what- 
ever, without  restriction.    Laidler  v.  Young,  2  H.  &  J.  69.    But  not  by  a  mere  contract 
to  convey.     Partridge  v.  Dorsey,  3  II.  &  J.  302. 
VOL.    I.  9 


98  Title  II.     Estate   Tail.     Ch.  II.  s.  36—38. 

was  tenant  in  tail  in  remainder,  expectant  on  some  preceding 
estate,  the  commissioners  only  acquired  a  base  fee,  determinable 
on  failure  of  issue  of  the  bankrupt.  For  the  statute  only  enabled 
the  commissioners  to  make  such  a  title  as  the  bankrupt  himself 
might  have  made.  [And  it  has  been  decided  that  even  under  a 
joint  commission  issued  against  tenant  for  life  in  possession,  and 
tenant  in  tail  in  remainder,  the  bargain  and  sale  of  the  commis- 
sioners passed  no  more  than  the  estate  for  life  in  possession,  and 
a  base  fee  in  remainder. 

Thus  A  being  tenant  for  life,  with  remainder  to  B  in  tail 
male,  with  remainder  over,  and  A  and  B  being  partners  in  trade, 

became  bankrupts.     It  was  held  that  a  bargain  and  sale 
90*       under  *a  joint  commission  against  them,  vested  in  the 

assignees  the  life-estate  of  A,  and  a  base  fee  determinable 
on  the  death  of  B,  and  failure  of  heirs  male  of  his  body.]  (a) 

37.  We  have  seen  that  conditional  fees  were  liable  to  forfeit- 
ure/or high  treason,  as  soon  as  the  donee  had  issue.1  When  the 
statute  De  Donis  was  made,  it  was  resolved  that  lands  entailed 
were  not  forfeited  for  treason,  beyond  the  life  of  the  tenant  in 
tail,  one  of  the  causes  of  this  statute  being  to  preserve  the  inher- 
itance in  the  blood  of  those  to  whom  the  gift  was  made,  not- 
withstanding any  attainder.  But  this  exemption  from  forfeiture 
not  being  agreeable  to  the  rapacious  principles  of  Henry  VIIL, 
he  had  the  address  to  procure  a  statute,  whereby  it  is  enacted, 
that  every  person  convicted  of  high  treason  "  shall  lose  and 
forfeit  all  such  lands,  tenements,  and  hereditaments,  which  any 
such  offender  or  offenders  shall  have  of  any  estate  of  inheritance, 
in  use  or  possession,  by  any  right,  title,  or  means,  &c,  at  the 
time  of  any  such  high  treason  committed,  or  any  time  after." 
Saving  to  every  person  and  persons,  their  heirs  and  succes- 
sors, (other  than  the  offenders  in  any  treason,  their  heirs  and 
successors,)  all  such  rights,  titles,  &c,  which  they  shall  have, 
at  the  day  of  the  committing  such  treasons,  or  at  any  time 
afore,  (b) 

38.  The  Statute  26   Hen.  8,   does  not  extend  to  attainders 

(a)  Fearne's  Op.  83.     Pye  v.  Daubuz,  3  Bro.  E.  595.    Jervis  v.  Tayleur,  3  B.  &  Aid.  557. 
(6)  (Ante,  ch.  1,  s.  5.)     1  Inst.  392.  b.     Plowd.  237.     Yin.  Ab.  Forfeit.  C.  pi.  4.     Stat. 
26  Hen.  8,  c.  13. 

1  See,  as  to  forfeitures  in  the  United  States,  ante.  tit.  1,  §  67,  note. 


Title  II.     Estate   Tail     Ch.  II.  s.  38—42.  99 

by  Parliament,  or  where  the  party  stood  mute.  But  by  the 
Statute  33  Hen.  8,  c.  20,  estates  tail  are  forfeited  by  all  man- 
ner of  attainders  of  treason.  And  the  actual  possession  of  the 
lands  is  also  transferred  and  vested  in  the  crown  presently  by 
the  attainder,  (a) 

39.  By  the  Statute  34  &  35  Henry  8,  c.  20,  estates  tail  of 
the  gift  of  the  crown  were  protected  from  forfeiture  for  treason. 
But  by  the  Stat.  5  &c  6  13d.  6,  the  former  statute  is  repealed, 
as  to  estates  tail  of  the  gift  of  the  crown,  which  are  again  made 
forfeitable  for  treason. 

40.  Lord  Coke  has  stated  the  effect  of  these  statutes  in  the 
following  words  : — "  If  tenant  in  tail  in  possession,  or  that  hath 
a  right  of  entry,  be  attainted  of  high  treason,  the  estate  tail  is 
barred,  and  the  land  is  forfeited  to  the  king."  It  has,  however, 
been  determined,  that  where  a  tenant  in  tail,  with  remainder  to 
a  subject,  discontinues  his  estate  before  his  attainder,  his  issue, 
having  only  a  right  of  action,  is  not  affected  by  it.     But 

*  where  'the  immediate   reversion   is   in   the   crown,  the       *91 
tenant  in  tail  cannot  create  a  discontinuance ;  so  that  a 
right  of  entry  remains  in  the  issue,  which  is  forfeited  by  the 
attainder,  (b) 

41.  By  the  attainder  for  high  treason  of  a  tenant  in  tail  in 
possession,  the  estate  tail  becomes  forfeited  to  the  crown,  during 
the  life  of  the  tenant  in  tail,  by  the  enacting  part  of  this  statute ; 
and,  in  consequence  of  the  exception  in  the  saving  clause,  it  also 
remains  in  the  crown  during  the  existence  of  the  heirs  of  the 
body  of  the  tenant  in  tail,  and  of  all  such  of  his  collateral  heirs 
as  would  have  been  inheritable  to  the  estate  tail,  if  there  had 
been  no  attainder. 

42.  But  neither  the  estates  in  remainder,  nor  the  reversion,  are 
forfeited  by  the  attainder  of  the  person  having  the  preceding 
estate  tail ;  therefore,  if  a  tenant  in  tail,  with  a  remainder  over, 
or  reversion  in  another  person,  is  attainted  of  high  treason,  the 
crown  will  thereby  only  acquire  a  base  fee,  as  long  as  there  are 
heirs  of  the  person  attainted  capable  of  inheriting  the  estate  tail, 
if  there  had  been  no  attainder ;  and  upon  failure  of  such  heirs, 
the  remainder-man  or  reversioner  will  become  entitled,  as  being 

(«)  Dowtic's  case,  3  Rep.  10.  b. 

(b)  1  Inst.  372.  b.     Hawk.  P.  C.  B.  2.  c.  49.     3  Rep.  2.  b.     Cro.  Car.  428. 


100  Title  II.     Estate   Tail.     Ch.  II.  s.  42—44. 

within  the  words  of  the  saving.     But  where  the  reversion  is  in 
the  crown,  all  will  be  forfeited. 

43.  The  Statute  26  Hen.  8,  only  extends  to  cases  of  high 
treason  ;  therefore  as  to  felonies,  the  statute  De  Donis  still 
remains  in  force  ;  so  that,  by  attainder  of  felony,  estates  tail  are 
only  forfeited  during  the  life  of  the  tenant  in  tail;  the  inheri- 
tance being  by  the  latter  statute  preserved  to  the  issue.  And 
Lord  Coke  says,  if  tenant  in  tail  of  lands  holden  of  the  king  be 
attainted  of  felony,  and  the  king,  after  office,  seizeth  the  same,  the 
estate  tail  is  in  abeyance.1  (a) 


(  44.  The  residue  of  this  chapter  is  omitted,  the  entire  sub- 
ject being  regulated  by  legislation  in  the  respective  States  of  the 
Union.  In  some  of  these  States,  fees  tail  are  expressly  turned 
into  and  made  fees  simple  absolute  in  the  donee  in  tail.  Such 
is  the  case  in  Connecticut,  New  York,  Virginia,  North  Carolina, 
Georgia,  Kentucky,  Tennessee,  Indiana,  and  Michigan.-  And 
such  seems  to  be  the  effect  of  the  statutes  of  South  Carolina, 
and  of  an  article  in  the  Declaration  of  Rights  in  the  constitu- 
tion of  Texas?  Such  also  is  the  case  in  Mississippi,  and  in 
Alabama;  but  conveyances  in  those  States  are  expressly  per- 
mitted to  be  made  to  a  succession  of  donees  then  living,  and  to 
the  heirs  of  the  body  of  the  remainder-man,  and  on  failure  of 
these,  to  the  right  heirs  of  the  donor.4  In  the  States  of  New 
Jersey  and  Missouri,  the  donee  in  tail  takes  only  a  life-estate, 
with  remainder  to  the  issue  as  tenants  in  common,  in  fee  simple 
absolute.5     In   Illinois,    Vermont,  and  Arkansas,  also,  the  donee 

'  (a)  1  Inst.  392.  b.     Id.  345.  a. 

1  Forfeitures  of  estates,  in  possession  or  in  action,  for  crimes,  are  scarcely  known  in 
American  law  ;  5  Dane's  Abr.  p.  3,  11  ;  4  Kent,  Comm.  p.  427  ;  Ante,  tit.  1,  §  67.  note. 

2  Connecticut,  Rev.  St.  1838,  p.  389,  §  4  ;  New  York,  Rev.  St.  1846,  Vol.  II.  p.  9,  §  3  ; 
[Van  Rensselaer  v.  Kearney,  11  How.  U.  S.  297:]  Virginia,  Tate's  Digest,  p.  201 ; 
North  Carolina,  Rev.  St.  1836,  ch.  43,  §  1,  Vol.  I.  p.  258  ;  Georgia,  Prince's  Digest,  p. 
246,247;  Kentucky,  Rev.  St.  1834,  Vol.  I.  p.  442,  §  10:  Tennessee,  Carruthers  and 
Nicholson's  Digest,  p.  279:  Indiana,  Rev.  St.  1843,  p.  424,  §  1;  Michigan,  Rev.  St. 
1838,  p.  258,  $  3. 

3  S.  Carolina,  Statutes  at  Large,  Vol.  II.  p.  415,  §  10 ;  Idem,  Vol.  III.  p.  341,  §  1  ;  4 
Griffith's  Law  Reg.  p.  852,  n. ;  Texas,  Constitution,  tit.  Declaration  of  Rights,  art.  17. 

4  Mississippi,  Howard  and  Hutchinson's  Digest,  ch.  34,  §  24,  p.  348 ;  Alabama.  Toul- 
min's  Digest,  p.  247,  §  10. 

5  New  Jersey,  Elmer's  Digest,  p.  130,  §  6  ;  Missouri,  Rev.  St.  1845,  ch.  32,  §  5.  And 
see  Den  v.  Fox,  5  Halst.  39. 


Title  II.     Estate  Tail    Ch.  II.  s.  44.  101 

takes  an  estate  for  life,  with  remainder  in  fee  simple  to  him  who 
would  first  takef  per  formam  doni,  on  the  decease  of  the  first 
tenant  in  tail.1  In  Ohio,  the  law  seems  in  effect  the  same,  it 
being  enacted  that  all  estates  tail  shall  become  fees  simple  in  the 
issue  of  the  first  donee  in  tail.2  In  the  States  of  Maine,  New 
Hampshire,  Massachusetts,  Rhode  Island,  Delaware,  Pennsyl- 
vania, and  Maryland,  estates  tail  are  recognized  as  valid  estates ; 
but  the  tenant  in  tail  is  enabled  to  bar  them  by  a  deed  of  con- 
veyance in  fee  simple.3  In  Rhode  Island,  such  estates  may 
also  be  barred  by  devise  in  fee  simple,  by  the  tenant  in  tail.4) 

1  Illinois,  Rev.  St.  1833,  p.  131,  §  6;  Vermont,  Rev.  St.  1839,  ch.  59,  §  1  ;  Arkansas. 
Rev.  St.  1837,  ch.  31,  §  5,  p.  189. 

2  Ohio,  Rev.  St.  1841,  ch.  44. 

3  Maine,  Rev.  St.  1840,  ch.  91,  §  6 ;  N.  Ilamp.,  Rev.  St.  1842,  ch.  129,  §  1 ;  Massa- 
chusetts, Rev.  St.  1836,  ch.  59,  §  3  ;  Soule  v.  Soule,  5  Mass.  61,  65  ;  Delaware,  Rev.  St. 
1829,  p.  197;  Maryland,  Statutes,  Vol.  I.  p.  181,  §  2,  (Dorsey's  ed.)  Pennsylvania,  Pur- 
don's  Digest,  p.  353 ;  and  see  Laidler  v.  Young,  2  H.  &  J.  69  ;  Nightingale  v.  Burrell, 
15  Pick.  104 ;  Ridgely  v.  McLaughlin,  3  H.  &  McHen.  220. 

i  Rhode  Island,  Rev.  St.  1844,  p.  261  ;  [Weld  y.  Williams,  13  Met.  486,  491;  Mas- 
lin  v.  Thomas,  8  Gill,  (Md.)  18.  A  deed  by  a  tenant  in  tail,  made  to  bar  the  entail, 
though  not  recorded  until  after  the  tenant's  death,  operates,  when  recorded,  from  its 
delivery,  like  any  other  conveyance.     Terry  v.  Briggs,  12  Met.  17.] 

[Whether  estates  tail  are  divisible  in  Pennsylvania  by  deed  of  partition  between  the 
parties  interested,  so  as  to  bar  the  entail,  argued  but  not  decided.  Tilman  v.  Roland, 
15  Penn.  (3  Harris,)  429.] 


102 


TITLE  III. 

ESTATE     FOR     LIFE. 
BOOKS    OF    REFERENCE   UNDER    THIS    TITLE. 

Littleton's  Tenures,  §  56,  57. 

Coke  upon  Littleton,  41 — 43. 

Blackstoxe's  Commentaries.     Book  II.  eh.  8. 

Andrew  Bissett.     On  the  Law  of  Estate  for  Life. 

Owen  Flintoff.     On  the  Law  of  Real  Property.     Vol.  II.  Book  I.  ch.  3. 

Kent's  Commentaries.     Lect.  55. 

Lomax's  Digest.     Vol.  I.  tit.  3. 

CHAP.  I. 

NATURE   OF   AN   ESTATE   FOR  LIFE,   AND  ITS   INCIDENTS. 

CHAP.  II. 

WASTE   BY   TENANTS   FOR   LIFE. 


CHAP.  I. 

NATURE   OF   AN   ESTATE   FOR   LIFE,  AND   ITS   INCIDENTS. 


Sect.     1.  Description  of. 
2.  How  created. 
9.  Held  of  the  Grantor. 
10.  Not  Entailable. 
14.  Subject  to  Merger. 
16.  Tenants  for  Life  entitled  to 

Estovers. 
21.  And  to  Emblements. 

26.  May  pray  in  Aid. 

27.  Not  bound  to  pay  off  Incum- 

brances. 

28.  But  must  keep  down  the  In- 

terest. 


Sect.  29.   When  they  may  keep  the  Title 
Deeds. 

32.  May  alien  their  Estates.   And 

when  constructive  Trustees, 
may  convey  the  whole  Fee. 

33.  What  Act  amounts  to  a  For- 

feiture. 
43.  General  Occupancy. 
45.  Estates  pour  auter  vie  vest 

in  Executors. 
48.  Special  Occupancy. 
55.  Ecclesiastical    Persons    are 

cpaasi  Tenants  for  Life. 


Section  1.  An  estate  for  life  is  a  freehold  interest  in  lands, 
the  duration  of  which  is  confined  to  the  life  or  lives  of  some  par- 


Title  III.     Estate  for  Life.     Ch.  I.  s.  1—4.  103 

ticular  person  or  persons ;  or  to  the  happening  or  not  happening 
of  some  uncertain  event.1  It  is  in  most  respects  similar  to  the 
ususfructus  of  the  civil  law,  which  is  thus  denned  in  Justinian's 
Institutes  : — Ususfructus  est  jus  alienis  rebus  utendi  fruendi,  salvd 
reruni  substantia.  For  the  tenant  for  life  has  a  right  to  the  pos- 
session, and  annual  produce  of  the  land,  during  the  con- 
tinuance of  his  estate;  *  without  having  the  proprietas,  *102 
that  is,  the  absolute  property  and  inheritance  of  the  land 
itself,  which  is  vested  in  some  other  person.2  (a) 

2.  Estates  for  life  are  of  two  sorts ;  either  expressly  created  by 
deed,  or  some  other  legal  assurance  ;  or  deriving  their  existence 
from  the  operation  of  some  principle  of  law? 

3.  The  first  of  these,  which  forms  the  subject  of  the  present 
title,  arises  where  lands  are  conveyed  to  a  man  for  the  terms  of 
his  own  life,  or  that  of  any  other  person,  or  for  more  lives  than 
one ;  in  all  which  cases  he  is  called  tenant  for  life,  except  where 
he  holds  for  the  life  of  another,  when  he  is  called  tenant  pour 
auter  vie.  And  where  a  person,  having  an  estate  for  his  or  her 
own  life,  either  by  express  limitation,  or  by  the  operation  of  some 
principle  of  law,  grants  it  over,  the  grantee  becomes  the  tenant 
pour  auter  vie. 

4.  If  lands  are  conveyed  to  a  person  for  his  own  life,  and  that 
of  A  and  B,  the  grantee  has  an  estate  of  freehold,  determinable 
on  his  own  death  and  the  deaths  of  A  and  B  ;  nor  can  there  be 
any  merger  of  the  freehold  during  the  lives  of  A  and  B  into  the 
estate  which  the  lessee  has  for  his  own  life  ;  because,  though  an 
estate  for  a  man's  own  life  is  greater  than  an  estate  for  the  life 

(a)  Lib.  2.  tit.  4. 

1  Ad  tcmpus  indcterminatum,  absque  aliqua  certa  temporis  pnefinitione.  Braeton,  lib.  4. 
c.  28,  fol.  207  ;  Co.  Lit.  42,  a. 

'2  [At  common  law  the  husband  has  a  life-estate  in  lands  of  which  his  wife  owns  the 
fee.  The  usufruct  is  his  and  is  an  estate  in  the  land  which  may  be  taken  in  execution 
for  his  debts.  Eldridge  v.  Preble,  34  Maine,  (4  Red.)  151  ;  Dejarnatte  v.  Allen,  5  Gratt. 
499.  A  devise  from  a  husband  to  a  wife,  in  lieu  and  bar  of  dower,  of  the  "use  and 
improvement"  of  one  third  of  all  the  testator's  real  estate,  gives  to  the  widow  a  life- 
estate  therein.  Fay  v.  Fay,  1  Cush.  95.  A  reversioner  with  the  assent  of  the  tenant 
for  life,  built  on  the  estate  a  house  and  occupied  it.  A  subsequent  conveyance  thereof 
was  held  not  to  give  the  grantee  a  right  to  enter  and  occupy  the  house  against  the  ten- 
ant for  life.  Cooper  v.  Adams,  6  Cush.  87.  A  tenant  for  life  may  have  a  proceeding 
for  damages  done  to  his  estate  by  a  railroad,  without  joining  the  remainder-man.  Rail- 
road v.  Boyer,  13  Penn.  State  R.  (1  Harris,)  497  ;  Staples,  Ex  parte,  9  Eng.  Law  &  Eq. 
Rep.  186.] 

3  [Stewart  v.  Clark,  13  Met.  79.] 


104  Title  III.     Estate  for  Life.     Ch.  I.  s.  4—10. 

of  any  other  person,  yet  here  the  lessee  has  not  two  distinct 
estates  in  him,  but  only  one  freehold,  circumscrioed  with  that 
limitation  as  the  measure  of  its  continuance,  (a) 

5.  By  the  statute  19  Charles  II.  c.  6,  s.  2,  it  is  enacted,  that  if 
the  persons  for  whose  lives  estates  are  granted,  shall  remain 
abroad,  (or  elsewhere  absent  themselves  within  the  realm,  by  the 
space  of  seven  years  together,)  and  no  sufficient  proof  be  made 
that  they  are  alive,  in  any  action  commenced  for  the  recovery  of 
the  lands  by  the  lessors  or  reversioners,  the  judge  shall  direct  the 
jury  to  give  their  verdict  as  if  the  person  so  remaining  abroad 
were  dead.  And  it  has  been  held  that  a  remainder-man  is  within 
this  statute,  (b) 

6.  The  estates  for  life  mentioned  in  the  preceding  sections, 
will  generally  endure  as  long  as  the  life  or  lives  for  which  they 
are  granted.  But  there  are  some  estates  for  life  which  may 
determine  -upon  future  contingencies  before  the  death  of  the  person 
to  whom  they  are  granted. 

7.  Thus  if  an  estate  be  given  to  a  woman,  dum  sola  fuerit,  or 
durante  viduitale,  or  to  a  man  and  a  woman  during  coverture,  or 

as  long  as  the  grantee  shall  dwell  in  a  particular  house  ; 
103  *    in  all  *  these  cases  the  grantees  have  estates  for  life,  de- 
terminable upon  the  happening  of  these  events.1  (c) 

8.  If  a  manor,  generally  worth  £10  a  year,  be  granted  to  a 
person  till- he  has  received  out  of  it  £100,  this  will  give  him  an 
estate  for  life  ;  for  as  the  profits  are  uncertain,  and  may  rise  and 
fall,  no  precise  time  can  be  fixed  for  the  determination  of  the 
estate. 

9.  Tenants  for  life  hold  of  the  grantors  by  fealty,  and  such 
other  reservations  as  are  contained  in  the  deed  by  which  the 
estate  is  created.  Where  there  is  no  reservation,  they  hold  by 
fealty  only ;  this  estate  not  being  comprehended  within  the  pro- 
visions of  the  statute  Quia  Emptores.  (d) 

10.  An  estate  for  life  is  not  capable  of  being  entailed  under 
the  statute  De  Donis ;  for  all  estates  tail  must  be  estates  of  in- 

(«)  1  Inst.  41.  b. 

(6)  Holman  v.  Extern,  Carth.  246.     Vide  stat.  6  Ann.  c.  18.     2  Cox,  R.  373. 

(c)  1  Inst.  42.  a.  (d)  Lit.  s.  132.     Dissert,  c.  2. 

[!  An  estate  durante  viduitate,  is  of  a  freehold  in  the  widow  and  in  any  one  to  whom  she 
may  convey  the  land  ;  and  if  her  grantee  dies  intestate,  and  the  administrator  conveys 
the  estate  to  another,  the  latter  thereby  takes  an  estate  of  freehold.  Roseboom  v.  Van 
Vechten,  5  Denio,  414.]  • 


Title  III.     Estate  for  Life.     Ch.  I.  s.  10—11.         105 

heritance.  Therefore,  where  an  estate  for  life  or  lives  is  limited 
to  a  person  and  the  heirs  of  his  body,  the  latter  words  only 
operate  as  a  description  of  the  persons  who  shall  take  as  special 
occupants  during  the  life  or  lives  for  which  the  estate  is  held ; 
and  the  grantee  takes  the  absolute  property,  which  he  may  dis- 
pose of  by  deed,  (a) 

11.  (Mr.  Yates,  in  1703,  being  entitled  to  lands  under  a  lease 
for  three  lives,  in  consideration  of  a  marriage  between  Frances 
Yates,  his  daughter,  and  Sir  Francis  Mannock,  conveyed  the 
premises  by  indentures  of  lease  and  release  to  trustees  and  their 
heirs,  during  the  said  lives,  in  trust  for  himself  during  his  life ; 
remainder  to  his  own  wife  to  secure  £60  ;  remainder  to  his 
daughter  for  life  ;  remainder  to  Sir  Francis  Mannock,  the 
intended  husband,  for  life  ;  remainder  to  his  first  and  other  sons 
successively  in  tail  male ;  remainder  to  his  daughters  as  tenants 
in  common  ;  remainder  in  trusj;  for  his  own  right  heirs.  On  the 
marriage  of  William  Mannock,  their  eldest  son,  with  the  sister  of 
the  plaintiff,  in  1734,)  by  an  indenture  reciting  the  last  settlement, 
and  that  Sir  Francis  had  obtained  a  new  lease  for  the  lives  of 
himself  and  his  wife  and  their  said  son  William,  it  was  declared 
and  agreed  that  certain  trustees  should  be  seised  of  the  leasehold 
premises  in  trust  for  Dame  Frances,  for  her  life ;  remainder  to 
Sir  Francis,  for  life  ;  remainder  to  the  said  William,  for  life  ;  re- 
mainder to  his  first  and  other  sons  in  tail  male,  with  remainders 
over.  Afterwards,  on  the  death  of  Sir  Francis,  a  new  lease  was 
obtained  for  the  lives  of  Dame  Frances,  Sir  William  and  his 
sister  ;  and,  subsequently,  in  1760,  by  indenture  reciting  the  set- 
tlement of  1734,  and  that  Sir  W.  M.  was  seised  of  the  said 
leasehold  premises  of  and  in  an  estate  of  descendible  freehold,  he 
covenanted  to  levy  a  fine  sur  concessit  of  the  said  premises,  to 
the  use  of  himself,  his  heirs  and  assigns.  A  fine  was  levied 
accordingly ;  and  Sir  W.  M.  surrendered  the  old  lease,  and  took 
a  new  one  (for  fresh  lives,)  which  he  devised  to  trustees  in  trust 
to  sell.  A  contract  for  sale  having  been  entered  into,  the  bill 
was  filed  for  a  specific  performance. 

Lord  Northington,  C,  said, — "  This  is  a  descendible  freehold, 
not  entailable  within  the  statute  De  Donis,  and  therefore  no 
common  recovery  could  be  suffered  of  it ;   but  the  person  who 

(a)  Tit.  2.  c.  1.  s.  24.    Low  v.  Burron,  3  P.  Will.  262.    Ex  parte  Sterne,  6  Ves.  158,  Mogg 
v.  Mogg,  1  Mer.  654. 


106  Title  III.     Estate  for  Life.     Ch.  I.  s.  11—14. 

would  have  been  tenant  in  tail,  had  it  been  an  inheri- 
104  *    tance,  is  entitled  to  the  *absolute  ownership.    It  is  like  the 

case  at  common  law  of  a  conditional  fee,  which  became 
absolute  by  the  party's  having  issue."  It  was  decreed  that  the 
contract  should  be  carried  into  execution,  (a) 

12.  R.  Bfake  devised  a  lease  for  three  lives  to  trustees,  in 
trust  for  his  son  R.  Blake,  and  the  heirs  male  of  his  body ;  and 
in  case  he  should  die  without  issue,  then  for  the  plaintiff,  his 
other  son,  in  like  manner.  R.  Blake,  the  son,  surrendered  the  old 
lease,  and  took  a  new  one  for  three  lives,  to  him  and  his  heirs. 
R.  Blake,  the  son,  died  without  issue,  having  by  his  will  disposed 
of  the  lease.  A  bill  was  filed  by  his  second  son  to  have  the 
benefit  of  the  new  lease  ;  insisting  that  the  surrender  of  the  old 
lease,  and  the  taking  of  the  new  one,  were  not  sufficient  to  bar 
the  limitation  to  the  second  son  ;  and  that  those  claiming  under 
R.  Blake,  the  son,  ought  to  be  decjared  trustees  of  the  new  lease 
for  the  plaintiff. 

The  Court  of  Exchequer  was  of  opinion  that  R.  Blake,  the 
son,  being  tenant  in  tail,f  a  court  of  equity  could  not  have  called 
upon  him  to  have  declared  such  a  trust  in  his  lifetime ;  that  there 
was  no  stronger  equity  against  his  representatives ;  and  dismissed 
the  bill,  (b) 

13.  This  doctrine  was  fully  confirmed  by  Lord  Kenyon,  who 
also  incnned  to  the  opinion,  that  a  person  having  an  estate  ot 
this  kind  might  dispose  of  it  by  will.  But  Lord  Redesdale  has 
said  he  could  find  no  decision  that  at  all  warranted  Lord  K.'s 
dictum.  That  he  found  from  his  note  of  the  case  of  Blake  v. 
Blake,  that  though  the  estate  was  devised,  the  argument  did  not 
turn  on  the  will,  nobody  conceiving  that  the  estate  would  pass 
by  it  if  the  quasi  estate  tail  subsisted  at  the  death  of  the  tes- 
tator, (c) 

14.  An  estate  for  life  is  subject  to  merge  in  the  inheritance ; 
therefore,  whenever  the   tenant  for   life    acquires   the  absolute 

(a)  Grey  v.  Mannock,  2  Eden's  R.  339. 

(b)  Blake  v.  Blake,  cited  3  P.  Will.  10.  S.  C.  1  Cox's  Rep.  266.  Blake  v.  Luxton,  Coop- 
er's Rep.  178. 

(c)  Doe  v.  Luxton,  6  Term  E.  291.  Campbell  v.  Sandys,  1  Scho.  and  Lef.  294.  Dillon  v. 
Dillon,  1  Ball  and  Be.  77.    2  Eden's  B.  341.  n. 


[t  This  must  be  a  mistake  ;  he  was  quasi  tenant  in  tail.  — Note  by  Mr.  Cruisc.J 


Title  III.     Estate  for  Life.     Ch.  I.  s.  14—19.  107 

property  or  inheritance  of  the  lands,  his  estate  becomes  merged 
or  drowned  in  the  fee  simple,  (a) 

15.  An  estate  pour  outer  vie  will  also  merge  in  an  estate  for  a 
man's  own  life,  the  latter  being  [to  him]  the  more  valuable  [and 
in  legal  contemplation  the  greater  estate.]  Thus,  if  an  estate  be 
limited  to  a  person  for  the  life  of  another,  remainder  to  himself  for 
his  own  life,  the  first  estate  is  merged,  (b) 

16.  Every  tenant  for  life  is  entitled  to  estovers ;  that  is,  to 
allowance  of  necessary  wood,  which  he  may  take  upon 

the  land,  *  without  any  assignment,  unless  restrained  by     *  105 
special  covenants  ;  for  modus  et  conventio  vincunt  legem  ; 
but  affirmative  covenants  do  not  restrain,  (c) 

17.  Spelman  says,  the  word  estovers,  estoverium,  is  derived 
from  the  French  word  estoffe,  material ;  it  is  used  in  this  sense  in 
the  statute  Westm.  2,  c.  25,  which  gives  an  assize  of  novel  dis- 
seisin de  estoveriis  bosci.  It  is  called  botes  in  the  Saxon  lan- 
guage, and  is  divided  into  three  sorts  ;  house  bote,  which  is  two- 
fold, estoverium  ardendi 1  et  cedificandi ;  plough  bote,  estoverium 
arandi;  and,  lastly,  hay  bote,  estoverium  claudendi.  (d) 

18.  It  was  resolved  in  28  Hen.  VIII.  that  where  a  lessor  cove- 
nanted with  a  lessee  that  he  should  have  thorns  for  hedges,  by 
the  assignment  of  the  lessor's  bailiff,  the  lessee  might  cut  thorns 
without  assignment,  for  what  the  law  gives  by  implication  in 
the  lease,  that  he  may  take  without  assignment ;  otherwise  where 
the  lessee  covenants  negatively,  that  he  will  not  take  without 
assignment,  (e) 

19.  Tenants  for  life  may  cut  down  timber  trees,  at  seasonable 
times,  for  the  reparation  of  houses  or  fences ;  but  a  tenant  for 
life  cannot  cut  down  timber  to  build  new  houses,  or  to  repair 
those  that  he  himself  has  improperly  suffered  to  fall  into  decay. 

(«)  1  Inst.  338.  b.     See  tit.  39.  (b)  Dyer  10.  b.  11  Rep.  83.  b.     See  tit.  39. 

(c)  1  Inst.  41.  b.  (d)  Gloss.     1  Inst.  41.  b.  13  Rep.  G3.  (e)  Dyer  19.  b.  Hob.  173. 


1  Tenant  for  life  may  not  cut  two  years'  fuel  in  one  and  the  same  year,  but  must 
take  it  year  by  year;  nor  may  lie  take  fuel  from  one  farm  or  estate  to  burn  on  another, 
■with  which  it  has  no  connection.  White  v.  Cutler,  17  Pick.  248  ;  Fuller  v.  Watson, 
7  N.  Hamp.  341.  Neither  may  he  sell  the  timber  to  purchase  fuel.  Padelford  v. 
Padelford,  7  Pick.  152;  Richardson  v.  York,  2  Shepl.  216.  But  in  New  Hampshire, 
a  doweress  is  permitted  to  take  fuel  to  burn  at  her  dwelling-house,  though  it  be  not  on 
the  land.  Rev.  Stat.  1842,  ch.  1G5,  $  7.  Whether  the  statute  of  3laine  gives  so  large 
a  license,  quaere.     Maine  Rev.  St.  ch.  95,  §  16. 


108  Title  III.     Estate  for  Life.     Ch.  I.  s.  19—21. 

And  where  he  cuts  down  more  timber  than  is  necessary,  it  is 
waste,  though  he  asserts  that  he  cut  it  down  to  employ  it  in 
future  reparations.1  (a) 

20.  In  an  action  of  waste,  for  cutting  down  three  hundred 
oaks,  the  defendant,  as  to  two  hundred  of  them,  pleaded  that 
the  houses  let  to  him  were  ruinous,  &c,  and  that  he  cut  them 
down  to  repair  those  houses ;  as  to  the  residue,  that  he  cut  them 
down,  and  kept  them  to  be  used  in  reparations,  tempore  oppor- 
tuno,  &c. 

The  plaintiff  demurred  in  law ;  but  the  Court  held  it  no  plea  ; 
for  if  it  should,  every  farmer  might  cut  down  all  the  trees  grow- 
ing on  the  land,  when  there  was  not  any  necessity  of  reparations. 
As  to  waste  by  tenants  for  life,  it  will  be  treated  of  in  the  next 
chapter,  (b) 

21.  Where  a  tenant  for  life  dies  before  harvest  time,  his  execu- 
tors will  be  entitled  to  the  crops  then  growing  on  the  lands,  as 
a  return  for  the  labor  and  expense  of  tilling  and  sowing  the 
ground  ;  which  the  law  calls  emblements.2  (c) 

(a)  1  Inst.  53  b.  54  b.     Viu.  Ab.  Waste,  M. 

(£)  Gorges  v.  Stanfield,  Cro.  Eliz.  593. 

(c)  (Stewart  t.  Doughty,  9  Johns.  Ill,  112.     4  Kent.  Comm.  109,110.) 

1  In  trespass  on  the  case,  where  the  tenant  hired  one  to  repair  the  fences  with  boards 
and  stakes,  and  to  furnish  those  materials,  in  payment  for  which  he  permitted  the  per- 
son to  cut  down  and  take  trees  for  fuel,  to  the  value,  it  was  held  waste.  Elliot  v.  Smith, 
2  N.  Hamp.  R.  430.  But  in  an  action  of  waste,  in  which  the  plaintiff  claimed  a  forfeit- 
ure, it  was  held,  that  if  the  cutting  was  originally  for  the  purpose  of  repairs,  and  the 
timber  was  afterwards  sold,  or  exchanged  for  more  suitable  materials,  and  the  proceeds 
were  bondjide  applied  to  that  purpose,  it  was  not  waste.  Loomis  v.  Wilbur,  5  Mason, 
R.  13,  per  Story,  J.  But  see  Simmons  v.  Norton,  7  Bing,  640,  where  the  contrary  was 
held  by  Taunton,  J.  [The  tenant  for  life  may  cut  timber  for  mining  purposes  in  work- 
ing coal  mines  already  opened.  Neel  v.  Neel,  19  Penn.  (7  Harris,)  323.  See,  also, 
Crockett  v.  Crockett,  2  Ohio,  N.  S.  180.] 

2  The  right  to  emblements  does  not  give  a  right  to  the  exclusive  possession  of  all 
the  lands,  but  only  the  right  of  ingress  and  egress  so  far  as  is  needful  for  due  atten- 
tion to  the  crops.  Humphries  v.  Humphries,  3  Ired.  362.  Yet  if  the  landlord,  after 
the  tenant  who  is  entitled  to  a  way-going  crop  has  left  the  premises,  does  an  injury  to 
the  crop,  the  tenant  may  maintain  trespass  quare  elausum  fregit  against  him.  For- 
syth v.  Price,  8  Watts,  282. 

The  character  of  growing  crops,  and  the  respective  rights  of  landlords,  tenants  and 
creditors  thereto,  in  the  several  States  of  the  Union,  are  in  many  cases  regulated  by 
statutes.     See  ante,  tit.  1,  §  9,  note. 

A  growing  crop  passes  by  a  grant  of  the  reversion.  Burnside  v.  Weightman,  9  Watts, 
46  ;  but  if  the  landlord  has  agreed  that  the  crop  shall  at  all  events  belong  to  the  ten- 
ant, the  grantee  of  the  reversion,  with  notice  of  the  agreement,  is  bound  by  it.  and  may 


Title  III.     Estate  for  Life.     Ch.  I.  5.  22—25.         109 

22.  This  rule  extends  to  every  case  in  which  the  estate  for  life 
determines  by  the  act  of  God,  or  the  act  of  law ;  but  not 
where  *it  is  determined  by  the  act  of  the  tenant.1     Thus,     *  106 
if  a  woman  who  holds  lands,   durante  viduitate,  which 

is  an  estate  for  life,  sows  them,  and  afterwards  marries,  she  will 
not  be  entitled  to  emblements,  because  her  estate  determined  by 
her  own  act.  (a) 

23.  If  an  estate  be  made  to  a  husband  and  wife  during  cover- 
ture, and  the  husband  sows  the  land,  and  afterwards  they  are 
divorced,  causa  pr&contr actus,  the  husband  will  be  entitled  to 
emblements.  For  although  the  suit  is  the  act  of  the  party,  yet 
the  sentence  which  dissolves  the  marriage,  is  the  judgment  of  the 
law;  et  judicium  redditur  in  invitum.  (b) 

24.  If,  however,  a  person  seised  in  fee  of  land  sows  it  with 
grain,  and  after  grants  it  to  one  for  life,  remainder  over  to 
another,  and  the  first  grantee  dies  before  severance,  the  person  in 
remainder  shall  have  the  corn,  and  not  the  executors  of  the  first 
grantee  ;  for  the  reason  of  industry  and  charge  is  wanting,  (c)  2 

25.  The  word  emblements  only  extends  to  such  vegetables  as 
yield  an  annual  profit ;  so  that  if  a  person  who  is  tenant  for  life 
plants  fruit  trees,  or  oaks,  ashes,  or  elms,  &c,  or  sows  the  ground 
with  acorns,  his  executors  will  not  be  entitled  to  them.     But  if  a 

(a)  (Dcbow  v.  Colfax,  5  Halst.  128.  Hunt  v.  Watkins,  1  Humphr.  49S. )  Oland's  case, 
5  Rep.  116. 

(b)  Oland's  case,  5  Kep.116.     (Gould  v.  Webster,  1  Tyl.409.)        (c)  Hob.  132. 


not  hinder  the  tenant  from  entering  to  gather  the  crop.  Davis  v.  Brocklebank,  9  New 
Hamp.  73.  And  see  Cassilly  v.  Rhodes,  12  Ohio  R.  88 ;  Adams  v.  Tanner,  5  Ala.  R. 
740  ;  Grantham  v.  Hawley,  Hob.  132.  See  further,  as  to  emblements,  post,  tit.  8,  ch.  2, 
§  19,  notes. 

i  The  doctrine  of  emblements  is  held  not  to  apply  against  the  State ;  and  therefore 
the  purchaser  of  lands  directly  from  the  United  States,  has  been  adjudged  to  be  entitled 
to  the  crops  then  growing  upon  the  land.  Boyer  v.  Williams,  5  Mis.  R.  305.  And  see 
Rasor  v.  Quails,  4  Blackf.  286. 

If  the  tenant  for  life  prepares  the  ground  for  sowing,  and  dies  before  it  is  actually 
sown,  after  which  it  is  sown  by  the  remainder-man  ;  it  is  said  that  the  representatives  of 
the  tenant  are  entitled  to  the  expenses  of  preparing  the  ground.  Gee  v.  Young,  1  Hayw. 
17.    But  see  Stewart  v.  Doughty,  9  Johns.  Ill,  1 12  ;  [Price  v.  Pickett,  21  Ala.  471.] 

2  Lands  already  sown  and  planted  were  conveyed  in  trust  for  husband  and  wife,  and 
the  survivor  of  them,  and  then  the  husband  died.     It  was  held  that  the  crops  survived 
to  the  wife,  and  did  not  go  to  the  husband's  representative ;  but  that  if  the  husband  had 
sown  the  ground,  it  had  been  otherwise.    Ilaslett  v.  Glenn,  7  II.  &  J.  17. 
VOL.    I.  10 


110  Title  III.     Estate  for  Life.     Ch.  I.  s.  25—28. 

tenant  for  life  dies  in  August,  before  severance  of  hops,  his  ex- 
ecutors shall  have  them,  though  growing  on  ancient  roots. 

This  determination  was  probably  on  account  of  the  great 
expense  of  cultivating  the  ancient  roots,  (a) } 

26.  In  all  real  actions,  a  tenant  for  life  may  pray  in  aid,  or 
call  for  the  assistance  of  the  person  entitled  to  the  inheritance,  to 
defend  his  title  ;  because  the  tenant  for  life  is  not  generally  sup- 
posed to  have  in  his  custody  the  evidences  necessary  to  estab- 
lish the  right  to  the  inheritance,   (b) 

27.  A  tenant  for  life  is  not  subject  to  the  payment  of  any 
principal  sums  charged  on  the  inheritance;  therefore  where  he 
pays  off  an  incumbrance  of  this  kind,  he  becomes  a  creditor  on 
the  estate  for  the  sum  so  paid ;  for  otherwise  he  must  be  sup- 
posed to  have  paid  it  for  the  benefit  of  the  persons  entitled  to  the 
inheritance ;  but  if  a  tenant  for  life  does  any  act  which  shows 
an  intention  of  paying  off  the  charge  for  the  benefit  of  the 
inheritance,  he  will  not  in  that  case  be  deemed  a  creditor,  (c)  2 

28.  Tenants  for  life  are,  however,  bound  to  keep  down  the  in- 
terest of  all  incumbrances  affecting  the  inheritance.  And  it  has 
been  lately  determined  that  the  rents  and  profits  of  an  estate  for 

life  must  be  applied,  not  only  in  payment  of  all  interest 
107  *     due  *  during  the  possession  of  the  tenant  for  life,  but 

also  of  all  interest  due  before  the  commencement  of  that 
estate,  (d)  3 

<(<()  llnst.  55  b.     (Craddock  v.  Riddlesbargor,  2  Dana,  206.)     Latham  v.  Atwooil,  Cro. 
Car.  515. 
(6)  Booth's  Real  Act.  60. 

(c)  1  Bro.  R.  208.  218.  1  Ves.  jun.  233.  tit.  12.  c.  3.  s.  12. 

(d)  Tracy  v.  Hereford,  2  Bro.  R.  128.     (Tit.  15.  c.  4.)     Penrhyn  r.  Hughes,  5  Ves.  99. 

i  But  clover,  though  not  perennial,  nor  yielding  a  crop  the  first  year,  is  not  within 
the  rule  of  emblements  ;  notwithstanding  the  dictum  in  Wins.  Exrs.  454 ;  Evans  v. 
Inglehart,  6  Gill  &  Johns.  188.  See  also  3  N.  Hamp.  504.  As  between  tenant  for  life 
and  remainder-man,  the  thinnings  of  fir  trees  under  twenty  years  of  age,  belong  to  the 
tenant  for  life.     Pidgely  v.  Rawley,  2  Coll.  Ch.  C  275. 

[  2  The  removal  of  an  incumbrance  upon  an  estate  by  a  tenant  for  life,  is  held  to  be 
for  the  joint  benefit  of  himself  and  the  reversioner,  who  is  bound  to  contribute  his 
proportion,  and  for  such  contribution  will  have  a  lien  upon  the  estate.  Daviess  v. 
Myers,  13  B.  Monr.  511.] 

3  But  it  has  been  lately  held,  that  where  an  estate,  subject  to  a  charge  bearing  inter- 
est is  limited  to  several  persons  in  succession  as  tenants  for  life,  the  conclusion  to  be 
drawn  from  the  authorities  appears  to  be  that  each  tenant  for  life  is  liable  only  for  the 
interest  for  his  own  time;  but  that  to  liquidate  the  arrears  during  his  own  time,  he 
must  furnish,  if  necessary,  all  the  rents  during  the  whole  of  his  life.    Caulfield  v. 


Title.  III.     Estate  for  Life.     Oh.  I.  s.  29—31.         Ill 

29.  Although  every  person  having  a  freehold  interest  has  a 
right  to  the  custody  of  the  title  deeds ;  yet  Lord  Hardwicke  has 
said,  it  was  the  common  practice  for  the  Court  of  Chancery  to 
direct  the  title  deeds  to  be  taken  from  the  tenant  for  life,  and 
deposited  in  Court,  for  the  security  of  the  persons  entitled  to  the 
inheritance,  (a) 

30.  In  a  case  where  the  title  deeds  of  an  estate  had  been  sent 
to  a  master  in  chancery  for  the  purpose  of  showing  the  title  to  a 
part  directed  to  be  sold,  and  the  tenant  for  life,  after  the  sale, 
had  obtained  an  order  that  they  should  be  delivered  to  him  ;  the 
persons  entitled  to  the  inheritance  moved  the  Court  of  Chancery 
to  discharge  that  order.  Lord  Henley  refused  the  motion,  ob- 
serving it  was  his  opinion  that  the  tenant  for  life  should  have  the 
deeds,  except  when  brought  into  Court,  under  an  order  for  safe 
custody,  (b) 

31.  It  is  however  laid  down  in  a  modern  case,  that  although 
when  title  deeds  are  in  the  hands  of  the  tenant  for  life,  the  Court 
of  Chancery  will  not  take  them  from  him  ;  yet  when  they  are  in 
other  hands,  the  Court  will  not  order  them  to  be  delivered  to 
him.  In  a  subsequent  case  it  was  said  that  when  the  tenant  for 
life  was  satisfied,  and  did  not  care  about  the  deeds,  but  the  re- 
mainder-man was  not  satisfied,  the  Court  would  take  care  of 
them,  and  not  leave  them  in  the  hands  of  a  third  person.  And 
in  a  late  case,  Lord  Eldon  directed  the  title  deeds  of  an  estate 
to  be  delivered  out  of  Court,  upon  the  application  of  trustees 
and  tenant  for  life,  on  the  authority  of  Lord  Henley,  (c)  f 

(a)  Burges  v.  Mawbey,  1  Turn.  &  R.  174.     2  P.  Will.  477.  1  Atk.  431. 

(b)  Webb  v.  Lord  Lymington,  1  Eden.  8. 

(c)  Hicks  v.  Hicks,  Dick.  650.     Ford  v.  Peering,  1  Ves.  jun.  72.     Ante,  s.  30. 

M'Guire,  2  Jones  &  La  Touche,  141.  As  to  the  principles  on  which  a  court  of  equity 
will  assume  that  a  tenant  for  life,  being  also  the  owner  of  a  charge  on  the  inheritance, 
has  done  his  duty  in  keeping  down  the  interest  on  the  charge,  see  Burrell  v.  E.  of  Egre- 
mont,  7  Beav.  206.  Sec  also  Hinves  v.  Hinves,  3  Hare,  609.  [It  seems  that  if  the 
profits  of  property  given  for  life,  and  then  over,  are  taken  for  payment  of  debts,  the 
tenants  for  life  may  claim  from  the  remainder-men  a  contribution,  in  proportion  to 
their  respective  interests.     Chesson  r.  Chesson,  8  Ired.  Erj.  141.] 

[t  The  following  observations  and  references  to  cases  on  the  subject  of  the  custody 
of  title  deeds  by  tenants  for  life,  may  not  be  unacceptable  to  the  student. 

Every  tenant  for  life  has  prima  facie  a  right  to  hold  the  title  deeds  of  the  estate. 
Ford  r.  Peering,  1  Ves.  jun.  72,  76;  Strode  v.  Blackbourne,  3  Ves.  225 ;  Bowles  v. 
Stewart,  1  Scbo.  &  Lef.  209,  223.  Where,  therefore,  a  father  is  tenant  for  life,  and  his 
son  tenant  in  tail  or  in  fee,  and  there  are  no  interests  in  strangers,  the  Court  of  Chan- 


112  Title  III.     Estate  for  Life.     Ok.  I.  s.  32—33. 

108*  *32.  Every  tenant  for  life  has  a  right  to  the  full  use 
and  enjoyment  of  the  land,  and  of  all  its  annual  profits, 
during  the  continuance  of  his  estate.  He  has  also  the  power  of 
alienating  his  whole  estate  and  interest,  or  of  creating  out  of  it 
any  less  estate  than  his  own,  unless  he  is  restrained  by  condition. 
But  if  a  tenant  for  life  attempts  to  create  a  greater  estate  than 
his  own,  it  must  necessarily  be  void,  upon  the  principle  that 
nemo  dat  quod  non  habet.  If,  however,  the  person  entitled  to  the 
inheritance  is  a  party  to  the  deed,  there  the  tenant  for  life  may 
join  with  him  in  conveying  away  the  entire  inheritance.! 

33.  Estates  for  life  are  still,  in  some  respects,  considered  as 


eery  will  not,  it  seems,  from  the  cases  next  cited,  take  the  title  deeds  out  of  the  hands 
of  the  father.  Pyncent  v.  Pyncent,  3  Atk.  570  ;  Lord  Lempster  v.  Lord  Pomfret, 
Amb.  154  ;  Webb  v.  Lord  Lymington,  1  Eden,  8  ;  Tourle  v.  Rand,  2  Bro.  C.  C.  652. 
Duncombe  v.  Mayer,  8  Ves.  320;  Churchill  v.  Small,  ib.  322;  unless  there  be  evidence 
of  spoliation ;  Dixies  v.  Hilary,  Cary,  26,  7  cd.  1820  ;  Crop  v.  Norton,  2  Atk.  74,  76  ; 
Smith  v.  Cooke,  3  ib.  378,  381  ;  Pord  v.  Peering,  1  Ves.  jun.  72,  78,  and  see  Papillon 
v.  Voice,  2  P.  Will.  476. 

But  when  the  tenant  for  life  is  a  stranger  to  the  remainder-man  whose  estate  is  im- 
mediately expectant  upon  the  estate  for  life,  the  Court  will,  on  the  petition  of  the 
remainder-man,  without  evidence  of  spoliation,  order  the  deeds  for  safe  custody.  Ivie 
v.  Ivie,  1  Atk.  430;  Pyncent  v.  Pyncent,  3  ib.  571  ;  Lord  Lempster  v.  Lord  Pomfret, 
Amb.  154  ;  unless  the  remainder  be  remote  ;  Ivie  v.  Ivie,  ubi  supra ;  Joy  v.  Joy,  2  Eq- 
Cas.  Abr.  284,  or  contingent ;  Ib.  and  Noel  v.  Ward,  1  Mad.  329. 

In  the  case  of  a  jointress  or  dowress,  the  Court  will,  on  confirmation  of  her  jointure 
or  dower,  order  her  to  deliver  up  title  deeds  to  the  person  next  entitled  to  the  pos- 
session. Petre  v.  Petre,  3  Atk.  511,  Sand.  cd.  (n.);  Tourle  v.  Rand,  2  Bro.  C.  C.  652  ; 
Senhouse  v.  Earle,  2  Ves.  sen.  450 ;  Leech  v.  Trollop,  ib.  662 ;  Eord  v.  Peering,  1  Ves. 
jun. 76. 

With  respect  to  the  custody  of  title  deeds  as  between  trustee  and  cestui  que  trust, 
the  feoffee  to  uses  before  the  statute  of  27  Hen.  8,  c.  10,  was  entitled  to  the  custody  of 
the  deeds,  and  so  it  would  seem  by  analogy,  and  for  similar  reasons  the  trustee  who 
has  the  whole  legal  fee  in  him  since  the  statute,  is  entitled  to  the  custody  of  the  deeds. 
Lady  Shaftsbury  v.  Arrowsmith,  4  Ves.  67,  72  ;  Harper  v.  Eanldcr,  4  Mad.  129.  But 
upon  the  application  of  the  cestui  que  trust,  apprehending  spoliation,  the  Court  would, 
upon  the  authorities  before  cited,  order  the  deeds  for  safe  custody.]  (2  Story,  Eq.  Jur. 
§  703,  701.     But  see  tit.  2,  ch.  1,  §  39,  n.) 

[  f  Where  an  estate  has  been  contracted  to  be  sold,  and  the  vendor  dies  before  the 
completion  of  the  purchase,  having  devised  the  estate  in  settlement  to  one  for  life,  or 
other  limited  interest,  with  remainders  over,  and  the  specific  performance  is  decreed, 
the  tenant  for  life,  or  other  limited  interest,  is  empowered  by  the  1  Will.  4,  c.  60, 
sec.  17,  to  convey  the  whole  fee  or  other  interest  contracted  to  be  sold,  or  in  such 
manner  as  the  court  shall  direct ;  and  such  conveyance  is  made  as  effectual  as  if 
the  party  conveying  were  seised  in  fee.  The  above  act,  section  18,  applies  to 
other  constructive  trusts  as  well  as  in  the  preceding  instance,  and  also  to  resulting 
trusts.] 


Title  III.     Estate  for  Life.     Ch,  I.  s.  33—36.  113 

strict  feuds,  being  forfeitable  for  many  of  the  causes  for  which 
feuds  were  formerly  forfeited.  Thus,  where  a  tenant  for  life 
takes  upon  him  to  convey  a  greater  estate  or  interest  than  that 
which  he  has,  whereby  the  estate  in  remainder  or  the 
reversion  is  *  divested,  such  conveyance  will  operate  as  a  *  109 
forfeiture  of  his  estate  for  life ;  because  it  is  a  renuncia- 
tion of  the  feudal  connection  between  him  and  his  lord ;  and 
the  person  in  remainder  or  the  reversioner  may  enter  for  the 
forfeiture,  (a) 

34.  Alienations  of  this  kind  may  be  either  by  deed  or  by 
matter  of  record.  I.  By  deed,  as  if  a  tenant  for  life  makes  a 
feoffment  in  fee  to  a  stranger,  it  is  a  forfeiture.  So  if  there  be  a 
tenant  for  life,  remainder  to  another  for  life,  and  both  join  in 
a  feoffment  in  fee  to  a  stranger,  it  is  a  forfeiture  of  both  their 
estates,  (b) 

35.  If  a  baron  and  feme,  tenants  for  life,  make  a  feoffment,  this 
is  a  forfeiture  during  the  coverture.  So  where  the  baron  is  seised 
in  right  of  his  wife,  and  the  baron  and  feme  make  a  feoffment. 
It  is  the  same  where  the  baron  alone  makes  a  feoffment.  But  in 
all  these  cases  it  shall  not  be  any  forfeiture  against  the  wife  after 
the  death  of  her  husband,  (c) 

36.  There  are,  however,  several  modern  modes  of  assurance, 
which  do  not  divest  the  estates  in  remainder  or  the  reversion  ; 
and,  therefore,  have  not  the  effect  of  creating  a  forfeiture  of  an 
estate  for  life,  (d)  1 

(a)  Gilb.  Ten.  38.  Wright,  203.  (b)  1  Inst.  251.  a.     Tit.  33.  c.  4. 

(c)  10  Vin.  Ab.  371.  (d)  Tit.  32.  c.  10. 

1  Thus,  if  he  conveys  by  a  deed  of  lease  and  release,  or  of  bargain  and  sale,  or  other 
conveyance  operating  by  the  statute  of  uses,  he  passes  no  greater  estate  than  he  has  in 
the  land,  and  it  is  no  forfeiture.  Pendleton  v.  Vandevier,  1  Wash.  381.  [A  deed  of 
release  and  quitclaim  in  fee,  by  a  tenant  for  life,  is  not  a  forfeiture  of  the  estate  for 
life.  Bell  v.  Twilight,  2  Foster,  N.  H.  500.]  In  some  of  the  United  States  it  has  been 
held  that  even  a  feoffment  created  no  forfeiture.  Rogers  v.  Moore,  11  Conn.  553.  In 
others,  it  is  provided  by  statutes  that  no  deed  of  a  tenant  for  life  or  years  shall  work  a 
forfeiture,  or  shall  operate  to  pass  a  greater  estate  than  he  could  lawfully  convey. 
Maine,  Rev.  St.  ch.  91,  §  9  ;  Massachusetts,  Rev.  St.  ch.  59,  §  6  ;  New  Hampshire,  Rev. 
St.  ch.  129,  §  6  ;  Vermont,  Rev.  St.  ch.  59,  §  4  ;  New  York,  Rev.  St.  1846,  Vol.  II.  p. 
23,  §  145  ;  Kentucky,  St.  1798,  Rev.  St.  Vol.  I.  p.  110;  Michigan,  Rev.  St.  1837,  part 
2,  tit.  1,  ch.  1,  §  7  ;  Indiana,  Rev.  St.  1843,  ch.  28,  §  23,  64;  Illinois,  Rev.  St.  1833, 
p.  129,  §  1  ;  Pennsylvania,  Purdon's  Dig.  5th  cd.  p.  251,  §  9  ;  McKcc  v.  Pfout,  3  Dall. 
486  ;  Virginia,  Tate's  Dig.  p.  101,  §  20;  Stat.  1785,  ch.  67.  See  also  4  Kent,  Comni. 
82—84;  Davis  v.  Whitesidcs,  1  Bibb,  R.  512. 

10* 


114  Title  III.     Estate  for  Life.     Ch.  I.  s.  37—41. 

37.  II.  By  matter  of  record,  as  where  a  tenant  for  life  levies  a 
/we,  or  suffers  a  common  recovery,  such  assurances  will  generally 

operate  as  a  forfeiture  of  his  estate ;  unless  the  person  in  remain- 
der or  reversion  is  a  party  to  them,  (a) 

38.  Tenant  for  life  may  also  forfeit  his  estate  by  disclaiming 
to  hold  of  his  lord,  or  by  affirming,  or  impliedly  admitting  the 
reversion  to  be  in  a  stranger,  upon  the  feudal  principle,  that  if 
the  vassal  denied  the  tenure,  he  forfeited  his  feud.  This  denial 
may  be  when  the  vassal  claims  the  reversion  himself,  or  accepts 
a  gift  of  it  from  a  stranger,  or  acknowledges  it  to  be  in  a  stranger ; 
for  in  all  these  cases  he  denies  that  he  holds  his  lands  of  the  lord. 
But  as,  by  the  feudal  law,  the  vassal  was  to  be  convicted  of  this 
denial ;  so  in  the  English  law  those  acts  which  plainly  amount 
to  a  denial  must  be  done  in  a  court  of  record,  to  make  them  a 
forfeiture,  because  such  act  of  denial  appearing  on  record,  is 
equivalent  to  a  conviction  upon  solemn  trial.  All  other  denials 
that  might  be  used  by  great  lords  for  trepanning  their  tenants, 
and  for  a  pretence  to  seize  their  estates,  were  by  our  law  rejected ; 
for  such  convictions  might  be  obtained  without  any  just  cause  ; 
but  the  denial  of  the  tenure  upon  record  could  never  be  counter- 
feited or  abused  to  any  injustice,    (b) 

110  *  * 39.  If,  therefore,  a  tenant  for  life  be  disseised,  and  bring 
a  writ  of  right,  this  is  a  forfeiture  of  his  estate  ;  because 
by  suing  that  writ  he  admits  the  reversion  in  fee  to  be  in  himself, 
and  by  consequence  denies  that  he  holds  over.  So  it  is,  if 
in  a  writ  of  right  brought  against  him,  he  joins  the  mise  on  the 
mere  right ;  for  by  taking  upon  himself  the  privileges  of  tenant 
in  fee  simple,  he  admits  the  inheritance  to  be  in  himself,  which  is 
a  denial  of  the  tenure,  (c) 

40.  If  a  stranger  brings  an  action  of  waste  against  a  tenant  for 
life,  and  he  pleads  nul  ivast  fait,  in  bar  to  the  action,  this  is  a 
forfeiture  ;  because  by  this  plea  he  admits  the  stranger  to  be  a 
proper  person  to  punish  waste,  if  there  be  any.  (d) 

41.  If  the  demandant  in  a  real  action  recovers  against  a  tenant 
for  life,  by  default,  or  nient  dedire,  or  by  pleading  covetously  to 
the  disherison  of  the  person  in  reversion,  these  are  forfeitures  of 

(a)  Tit.  35,  36. 

(b)  Dissert,  c.  1.     (Jackson  v.  Vincent,  4  Wend.  633.)    Bac.  Ab.  Est.  for  Life,  C. 

(c)  1  Inst.  251.  b.     See  Stat.  3  &  4  Will.  4.  c.  27.  s.  36,  37,  38. 

(d)  1  Inst.  251.  b.  252.  a.    10  Vin.  Ab.  378. 


Title   III.     Estate  for  Life.     Ch.  I.  s.  41—45.         115 

his  estate.  For  the  tenant  for  life  is  intrusted  with  the  freehold,1 
and  is  to  answer  to  the  prcecipes  of  strangers,  and  defend  his 
own,  as  well  as  the  reversioner's  interest;  but  when  he  gives 
way  to  the  demandant's  action,  he  admits  the  right  of  the  rever- 
sion to  be  in  him,  and  consequently  denies  any  tenure  of  his 
reversioner,  which  is  a  forfeiture. 

42.  Estates  for  life  are  also  forfeited  by  attainder  of  treason  or 
felony?  Lord  Hale  says,  if  tenant  for  life  be  attainted  of  treason, 
the  king  hath  the  freehold  during  the  life  of  the  party  attainted  ; 
and  in  the  case  of  felony,  the  profits  of  the  land  are  forfeited 
during  the  life  of  the  tenant  for  life,  (a) 

43.  By  the  common  law,  where  [lands  were  limited  to  A 
during  the  life  of  B,  and  AJ  died  during  the  life  of  cestui  que 
vie,  the  person  who  first  entered  on  the  land  after  his  death,  might 
lawfully  retain  the  possession  thereof,  as  long  as  cestui  que  vie 
lived  by  right  of  occupancy ;  because  it  belonged  to  nobody, 
[there  not  being  words  of  inheritance,  it  could  not  go  to  the  heir, 
and  being  an  estate  of  freehold,  it  could  not  devolve  upon  the 
executor.]  But  where  the  king  had  the  reversion,  no  right  of 
occupancy  was  allowed.  For  if  the  king's  title  and  a  subject's 
concur,  the  lung's  shall  always  be  preferred  ;  against  the  crown, 
therefore,  there  could  be  no  prior  occupant,  (b) 

44.  There   could   be   no    [general]    occupancy  of  incorporeal 
hereditaments,  such  as  advowsons,  rents,  &c,  (of  which 
notice  will  *be  taken  hereafter)  [inasmuch  as  they  lay  in     *111 
grant,  and  were  not  capable  of  actual  possession.]  (c) 

45.  The  right  of  general  occupancy  is  now  taken  away  by  the 
statute  29  Car.  II.  c.  3,  s.  12,  which  enacts, — "  That  any  estate 
pour  auter  vie  shall  be  devisable  by  will,  &c,  and  if  no  such  de- 
vise thereof  be  made,  the  same  shall  be  chargeable  in  the  hands  of 
the  heir,  if  it  shall  come  to  him  by  reason  of  a  special  occupancy, 
as  assets  by  descent,  as  in  case  of  lands  in  fee  simple.  And  in 
case  there  be  no  special  occupant  thereof,  it  shall  go  to  the  exec- 

(a)  P.  C.  vol.  1.  251.     2  Inst.  19. 

(6)  1  Inst.  41.  b.    2  Coram.  250.     Geary  v.  Bearcroft,  0.  Bridg.  484.     (c)  Co.  Lit.  41.  b. 

1  If  he  suffers  the  land  to  be  sold  for  taxes,  it  is  a  forfeiture  of  his  estate.  M'Millan 
v.  Kobbins,  5  Ham.  28. 

2  In  the  United  States,  there  is  no  forfeiture  for  felony  ;  nor  is  forfeiture  for  treason 
recognized  except  in  a  few  of  the  States  in  which  it  has  not  been  abolished.  Sec  ante, 
tit.  1,  §  67,  n. 


116  Title  III.     Estate  for  Life.     Ch.  I.  s.  45—48. 

utors  or  administrators  of  the  party  that  had  the  estate  thereof  by 
virtue  of  the  grant,  and  shall  be  assets  in  their  hands." 

46.  By  the  statute  14  Geo.  II.  c.  20,  s.  9,  reciting  the  statute 
29  Car.  II.  and  that  doubts  had  arisen,  where  no  devise  had 
been  made  of  such  estates,  to  whom  the  surplus,  after  debts  paid, 
should  belong ;  it  is  enacted, — "  That  such  estates  pour  aider  vie, 
in  case  there  be  no  special  occupant  thereof,  of  which  no  devise 
shall  have  been  made  according  to  the  said  act,  or  so  much 
thereof  as  shall  not  have  been  so  devised,  shall  go,  be  applied, 
and  distributed  in  the  same  manner  as  the  personal  estate  of  the 
testator  or  intestate."  ' 

47.  It  was  held  by  Lord  Eldon  in  a  modern  case,  that  the  in- 
terest in  an  estate  pour  auter  vie  to  a  man,  his  executors,  admin- 
istrators, and  assigns,  beyond  the  debts,  belonged  to  those  who 
were  entitled  to  the  personal  estate,  [that  is,  to  the  residuary 
legatees,  and  the  executor  as  special  occupant  was  held  a  trustee 
for  them ;  the  will  was  not  attested  according  to  the  statute  of 
frauds,  so  that  there  was  no  disposition  of  the  estate  pour  auter 
vie,  but  there  was  a  general,  bequest  of  the  residue  of  the  testa- 
tor's personal  estate.]  («) 

48.  Where  an  estate  was  limited  to  a  man  and  his  heirs,  or 
the  heirs  of  his  body,  during  the  life  of  another  person,  no  general 
right  of  occupancy  could  arise ;  for  the  heir  or  heirs  of  the  body 

-    («)  Ripley  v.  Waterworth,  7  Ves.  425.     Milnev  v.  Lord  Harewood,  18  Ves.  273. 

1  The  provisions  of  these  two  statutes  of  29  Car.  2,  &  14  Geo.  2,  have  been  enacted 
in  several  of  the  United  States.  See  New  Jersey,  Rev.  Code,  1820,  p.  223;  Elmer's 
Dig.  p.  596,  §  5;  Virginia,  Hening's  Statutes  at  Large,  Vol.  XII.  p.  152,  §  51  ;  Tate's 
Digest,  p.  520 ;  North  Carolina,  llev.  St.  Vol.  I.  p.  278,  §  22 ;  Kentucky,  Rev.  St.  1834, 
Vol.  I.  p.  669,  §  53  ;  Indiana,  Rev.  St.  1843,  ch.  30,  art.  1,  §  6.  In  Maryland,  estates 
pour  auter  vie  arc  made  assets  in  the  hands  of  the  executor  or  administrator  of  the 
tenant,  unless  expressly  limited  to  him  and  his  heirs  only.  Statutes  of  1798,  St.  101, 
ch.  7,  Dorsey's  ed.  Vol.  I,  p.  3S9.  In  New  York,  whether  limited  to  heirs,  or  other- 
wise, they  are  freehold  estates  only  during  the  life  of  the  grantee  or  devisee  ;  but  after 
his  death  are  deemed  chattels  real.  N.  York,  Rev.  St.  Vol.  II.  p.  9,  §  6,  (3d  ed.)  In 
Maine,  Massachusetts,  Rhode  Maud,  and  Alabama,  these  estates  are  expressly  made 
devisable;  and,  in  the  two  former  States,  descendible;  Maine,  Rev.  St.  ch.  92,  $  1 ; 
Massachusetts,  Rev.  St.  ch.  61,  §  1  ;  Rhode  Island,  Rev.  St.  1844,  p.  231  ;  Alabama,  Toul- 
min's  Dig.  p.  883,  §  2.  In  Arkansas,  all  real  estate  is  expressly  made  assets  in  the 
hands  of  the  executor  or  administrator  for  the  payment  of  debts.  Arkansas,  Rev.  St. 
ch.  4,  §  145.  Other  States  are  not  found  to  have  legislated  on  the  subject;  but  in  all 
cases,  where  no  express  provision  is  made,  these  estates  seem  to  be  regarded  as  other  real 
estates  of  a  deceased  owner,  and  go  in  the  same  course  of  distribution.  See  4  Kent, 
Comm.  p.  26,  27 ;  Walk.  Introd.  p.  275. 


Title  III.     Estate  for  Life.     Ch.  I.  s.  48—50.  117 

of  such  grantee  might,  and  still  may  enter,  on  the  death  of  his 
ancestor,  and  hold  the  possession  as  special  occupant;  having  an 
exclusive  right,  by  the  terms  of  the  original  contract,  to  occupy 
the  lands,  during  the  residue  of  the  estate  granted,  (a) 

49.  [It  was  for  a  long  time  considered   an  unsettled  point 
whether  executors  or  administrators  could  be  special  occu- 
pants *  of  corporeal  hereditaments.]     It  is  stated  in  Roll's     *  112 
Abridgment,  from  a  case  in  Dyer,  that  if  a  man  leases 

land  to  one  and  his  executors  for  the  life  of  J.  S.,  and  grantee 
dies,1  the  executor  shall  be  special  occupant,  though  it  be  a  frank 
tenement.  In  the  next  paragraph,  Roll  inserts  a  case  directly 
contrary.f  If  a  man  grants  a  rent  to  another,  his  executors  and 
assigns,  for  the  life  of  J.  S.,  and  after  the  grantee  dies,  making 
an  executor,  the  executor  shall  not  be  a  special  occupant ;  be- 
cause it  is  a  frank  tenement,  which  cannot  descend  to  the  exec- 
utor. (6) 

50.  Lord  Hardwicke  is  reported  by  Atkins  to  have  cited  the 
first  of  these  cases  from  Roll,  and  to  have  assented  to  it.  Lord 
Redesdale  has  expressed  strong  doubts  as  to  this  point ;  and  has 
justly  observed  that  the  title  of  an  executor  depends  on  his 
taking  upon  himself  the  administration  of  the  will:  therefore, 
does  not  commence  instanter,  but  by  his  subsequent  act.  As 
to  an  administrator,  ex  necessitate,  his  title  cannot  commence 
instanter.  It  should,  therefore,  seem  that  the  character  of  special 
occupant  cannot  properly  belong  to  either.  Lord  Redesdale 
further  observes,  that  on  the  contrary,  Lord  Chief  Baron  Comyn, 
in  his  Digest,  states  the  case  in  Dyer  as  having  decided,2  that  the 
executor  shall  not  have  the  land  as  special  occupant;  for  an 
occupant  has  the  freehold,  which  an  executor  cannot  take ;  and 

(a)  Doe  v.  Robinson,  8  Bar.  &  Cress.  296. 

(b)  Tit.  Occupant,  G.  pi.  2.     Dyer,  328.  pi.  10.     Culler  v.  Cheverton,  2  Roll.  Ab.  151. 

1  This  is  an  error.  In  the  case  in  Dyer  it  is  stated  that  the  lessor  died  within  the 
term,  liviftg  the  cestui  que  vie;  and  the  question  was,  whether  the  termor  should  be 
special  occupant,  or  tenant  by  sufferance,  paying  rent  to  the  executors  of  his  lessor. 
It  appears  to  be  the  same  with  Lord  Winslow's  case,  3  Leon.  35,  which  was  never 
decided. 

-  Ch.  B.  Comyn  states  that  the  question  was  raised  in  Dyer;  but  that  the  point  was 
decided  in  2  Bulstr.  11. 

[  t  The  first  rase  put  by  Boll  is  of  a  eorporeal  hereditament  (namely)  a  lease  of  the 
land  ;  the  second  case  is  the  grant  of  a  rent,  an  incorporeal  hereditament,  and  therefore 
distinguishable  from  the  former  case.] 


118  Title  III.     Estate  for  Life.     Ch.  I.  s.  50—53. 

refers  to  the  second  case  stated  in  Roll,  as  an  authority  for  this 
point.  That  that  case,  which  was  long  subsequent  to  the  case 
in  Dyer,  was  certainly  in  conformity  to  the  opinion  of  Comyn ; 
and  according  to  Salter  v.  Butler,  Moo.  664,  Cro.  Eliz.  901,  Yelv. 
9 ;  and  the  law  seemed  to  have  been  understood  by  Peer  Wil- 
liams as  so  settled,  though  he  did  not  appear  satisfied  with  it.  (a) 

51.  In  favor  of  the  proposition  that  an  executor  or  adminis- 
trator may  take  a  freehold  estate  as  special  occupant,  is  the  fol- 
lowing passage  in  Bacon's  Abridgment,  supposed  to  have  been 
written  by  Lord  Chief  Baron  Gilbert : — "  If  a  lease  be  made  of 
land  to  J.  S.,  his  executors  and  assigns,  during  the  life  of  B., 
the  executors  of  J.  S.  shall  be  the  special  occupants  if  he  die  in 

the  life  of  B  ;  for  though  it  be  a  freehold,  which  in  due 
113  *     *  course  of  law  would  not  go  to  executors,  yet  they  may 

be  designed,  by  the  particular  words  in  the  grant,  to  take 
as  occupants ;  and  such  designation  will  exclude  the  occupa- 
tion of  any  other  person  ;  because  the  parties  themselves,  who 
originally  had  the  possession,  have  filled  it  up  by  this  appoint- 
ment." (/3)  f 

52.  [The  case  of  Ripley  v.  Waterworth  (c)  seems  to  have 
settled  that  executors  and  administrators  can  take,  as  special 
occupants,  corporeal  hereditaments  ;  but,  until  the  recent  decision 
of  Bearpark  v.  Hutchinson,  (d)  the  still  more  doubtful  point 
remained,  whether  they  could  in  any  sense  be  special  occupants 
of  incorporeal  hereditaments ;  it  being  admitted  that  in  strictness 
there  could  not  be  occupancy  of  any  thing  which  lay  in  grant. 

53.  In  the  latter  case  a  rent  charge  was  limited  to  A  (gen- 
erally) during  the  life  of  B,  and  upon  A's  death  in  B's  lifetime, 
intestate,  a  question  arose  whether  the  rent  charge  was  not 
thereby  determined,  or  whether  it  belonged  to  the  administrator 
of  A  as  assets  within  the  29  Car.  II.  c,  8,  s.  12.  It  was  con- 
tended that  that  statute  applied  only  to  estates  pour  aider  vie,  of 
which  there  could  be  occupancy  at  common  law,  and  that,  as 
there  could  be  no  occupancy  of  a  rent  charge,  it  had  expired. 

(«)  Vol.  3.  4G6.     Irish  Eep.  vol.  1.  289.     Tit.  Estate,  F.  1.     Vol.  3.  201.  note  d. 

(b)  Tit.  Estate  for  Life.  3. 

(c)  7  Ves.  425.  ((7)  7  Ring:  178. 

[  t  In  addition  to  the  above  authorities  among  others  may  be  cited  the  opinion  of 
Lord  Hardwicke  in  Wcstfaling  v.  Wcstfaling,  3  Atk.  460 ;  and  in  Williams  v.  Jekyll, 
2  Ves.  S.  6S1.] 


Title  III.     Estate  for  Life.     Ch.  I.  s.  53—56.  119 

Tindal,  C.  J.,  delivered  the  opinion  of  the  Court  of  Common 
Pleas,  that  although  there  could  not  be  general  occupancy  of  a 
rent  charge,  for  the  reason  above  mentioned,  nor  in  strictness 
special  occupancy ;  yet,  upon  the  authority  of  Lord  Coke  and 
other  early  writers,  it  was  said  there  could  be  a  quasi  special 
occupancy ;  and  that,  as  the  statute  was  remedial,  it  was  the 
soundest  construction  of  the  second  branch  of  the  15th  section, 
to  hold  that  it  included  not  only  all  such  estates  pour  outer  vie, 
as  were  so  in  strictness,  but  also  all  such  as  were  in  common 
parlance  held  to  be  the  subject  of  special  occupancy.  The  Court 
expressed  their  opinion,  confirmed  by  the  decision  of  Lord  Keeper 
Harcourt  in  Rawlinson  v.  Duchess  of  Montague,  and  of  Lord 
Chief  Justice  Willes  in  his  report.]  (a) 

54.  In  a  modern  case  it  was  held  by  Lord  Kenyon  and  the 
other  judges,  that  if  an  estate  pour  outer  vie  be  limited  to 

*  a  man,  his  heirs,  executors,  administrators,  and  assigns,     *  114 
it  descends  to  the  heir  as  a  special  occupant,  in  preference 
to  the  executors,  (b) 

55.  Archbishops  and  bishops  were  formerly  considered  as  ten- 
ants in  fee  Simple  of  the  lands  which  they  held  in  right  of  their 
churches.  As  to  rectors,  parsons,  and  vicars,  Lord  Coke  says, 
that  for  the  benefit  of  the  church,  and  of  their  successors,  they 
were  in  some  cases  esteemed  in  law  to  have  a  fee  simple  quali- 
fied; but  to  do  any  thing  to  the  prejudice  of  their  successors,  in 
many  cases  the  law  adjudged  them  to  have  in  effect  but  an  estate 
for  life.  Since  the  several  statutes  by  which  all  ecclesiastical 
persons  and  corporations  are  restrained  from  alienation,  except 
by  leases  for  three  lives,  or  twenty-one  years,  they  are  generally 
considered  as  quasi  tenants  for  life  only,  (c) 

56.  In  consequence  of  this  principle,  it  is  enacted  by  the  stat- 
ute 28  Hen.  VIII.  c.  11,  s.  6,  that  in  case  any  incumbent,  before 
his  death,  hath  caused  any  of  his  glebe  lands  to  be  manured  and 
sown,  at  his  own  proper  costs  and  charges,  with  any  corn  or 
grain,  that  then  all  the  said  incumbents  may  make  and  declare 
their  testaments  of  all  the  profits  of  the  corn  growing  upon  the 
said  glebe  lands  so  manured  and  sown. 

(a)  3  P.  W.  2G4.  n.    Willes,  505.  (b)  Atkinson  v.  Baker,  4  Term  R.  229. 

(c)  1  Inst.  44.  a.     Id.  341.  a.  &  b.     Lit.  S.  648,  infra,  ch.  2.     Tit.  32.  c.  2.  &  5. 


120 


CHAP.  II. 


WASTE   BY   TENANTS   FOR   LIFE. 


Sect.  42.  May  be  cut  down  by  Order  of 
the  Court  of  Chancery. 

47.  Clause, without  Impeachment 
of  Waste. 

56.  How  far  restrained  in  Equity. 

G4.  Is  annexed  to  the  privity  of 
Estate. 

65.  Partial  Powers  to  do  Waste. 

68.   Waste  by  Ecclesiastics. 

76.  Accidents  by  Eire. 


Sect.     1.  Different  Kinds  of  Waste. 
2.  Felling  Timber. 
1 1 .  Pulling  down  Houses. 
14.   Opening  Pits  or  Mines. 
18.  Changing  the  Course  of  Hus- 
bandry. 

20.  Destruction  of  Heir  Looms. 

21.  Permissive  Waste. 

25.   Of  the  Action  for  Waste. 

34.  Waste  restrained  in  Equity. 

35.  The    Timber  belongs   to   the 

Person  entitled  to  the  In- 
heritance. 


Section  1.  Although  tenants  for  life  are  entitled  to  reasonable 
estovers,  yet  they  are  prohibited  from  destroying  those  things 
which  are  not  included  in  the  temporary  profits  of  the  land ; 
because  that  would  tend  to  the  permanent  and  lasting  loss  of  the 
person  entitled  to  the  inheritance.'  This  destruction  is  called 
Waste  ;  and  is  either  voluntary,  which  is  a  crime  of  commission, 
or  permissive,  which  is  a  matter  of  omission  only.  Voluntary 
waste  chiefly  consists, — 1.  In  felling  timber  trees  ;  2.  In  pulling 
down  houses  ;  3.  Opening  mines  or  pits  ;  4.  Changing  the  course 
of  husbandry  ;  5.  Destroying  heir  looms,  (a) 

(a)  (Baxter  v.  Taylor,  1  Nev.  &  M.  13.) 


1  The  injury  must  be  material  and  of  substance.  Therefore,  where  waste  was 
alleged  in  changing  the  course  of  husbandry,  and  the  jury  found  for  the  plaintiff  with 
only  three  farthings  damages,  the  defendant  was  held  entitled  to  judgment ;  for  de  min- 
imis non  curat  lex.  Harrow  School  v.  Alderton,  2  B.  &  P.  86.  And  see  Sheppard  v. 
Sheppard,  2  Hayw.  382.  So  Bracton,  speaking  of  the  taking  of  estovers,  beyond  the 
reasonable  measure,  says, — erit  vastum  injuriosum,  nisi  vastum  ita  modicum  fuerit,  propter 
quod  non  sit  inquisitio  facienda.  Bract.  1,  4,  c.  18,  §  12,  fol.  316,  b.  And  whether  the 
acts  done  are  prejudicial  to  the  inheritance,  is  for  the  jury  to  determine.  Jackson  v. 
Tibbits,  3  Wend.  341  ;  Smith  v.  Sharpe,  Bus.  Law,  N.  C.  91. 


Title  III.     Estate  for  Life.     Ch.  II.  s.  2—5.  121 

2.  The  first  kind  of  waste  consists  in  felling  1  timber  trees, 
except  for  estovers,  because  they  are  not  deemed  part  of  the 
annual  produce  of  the  land,  but  belong  to  the  owner  of 

the  *  inheritance  ;  therefore  the  tenant  for  life  has  only  a    *  116 
qualified  property  in  them,  as  far  as  they  afford  him  shade 
and  shelter,  and  a  right  to  take  the  mast  and  fruit,  (a) 

3.  In  the  case  of  leases  for  lives,  where  the  timber  is  included, 
if  the  lessor  fells  the  trees,  the  lessee  may  maintain  an  action  of 
trespass  against  him,  and  will  be  entitled  to  recover  damages 
adequate  to  the  loss  he  sustains  ;  because  the  lessee  has,  by  his 
lease,  a  particular  interest  in  the  trees,  such  as  the  mast  and 
fruit  of  them,  and  shade  and  shelter  for  his  cattle  ;  and  may  lop 
them,  if  they  be  not  thereby  injured.  But  the  property  of  the 
body  of  the  trees  remains  in  the  lessor,  as  parcel  of  his  inheri- 
tance ;  who  may  punish  the  lessee  in  an  action  of  waste,  if  he 
fells  or  damages  any  of  them.  So  that  both  the  lessor  and 
lessee  have  an  interest  in  the  trees  ;  therefore  if  a  stranger  cuts 
them  down,  each  of  them  shall  have  an  action  against  him,  to 
recover  their  respective  loss,  (b) 

4.  Where  the  trees  are  excepted  in  the  lease,  which  is  usually 
done,  the  lessee  has  no  interest  whatever  in  them ;  and  the  lessor 
may  have  an  action  of  trespass  against  him,  if  he  either  fells  or 
damages  them.  The  lessor  has  also  a  power,  as  incident  to  the 
exception,  to  enter  upon  the  land,  in  order  to  fell  and  take  away 
the  trees  ;  though  this  power,  for  the  greater  caution,  is  often  ex- 
pressly reserved,  (c) 

5.  Timber  trees  are  those  which  serve  for  building,  or  repara- 
tion of  houses ;  such  as  oak,  ash,  and  elm,  of  the  age  of  twenty 
years  and  upwards.2     But  where  oak  and  ash  are  seasonable 

(a)  1  Inst.  53.  a.     11  Rep.  48.  b. 

(6)  11  Rep.  48.  a.     1  Sauiid.  322.  n.  5.     (Little  v.  Palister,  3  Greenl.  6.) 
(c)  Foster  v.  Spooner,  Cro.  Eliz.  18.    Heydon  v.  Smith,  Godb.  173.    Jackson  v.  Cator,  5 
Ves.  688. 


1  It  is  not  waste,  if  the  tenant  should  cut  and  carry  away  trees  which  have  been 
blown  down  ;  the  remedy  in  such  case  is  in  trover.  Shult  v.  Barker,  12  S.  &  R.  272  ■ 
1  Hoffm.  Course,  211  ;  11  Rep.  46,  a.  Liford's  case. 

2  The  question,  what  are  timber  trees,  the  cutting  of  which  is  waste,  is  not  a  ques- 
tion of  law,  but  a  question  of  fact,  to  be  determined  by  the  jury.  The  principle 
of  law  is,  that  the  tenant  shall  not  be  permitted  to  do  any  act  of  permanent  injury 
to  the  inheritance,  except  to  take  his  reasonable  estovers ;  and  on  this  principle  the 
question  of  waste  or  no  waste,  in  the  cutting  of  trees,  is  to  be  decided  by  the  jury. 

VOL.  I.  11 


122  Title  III.     Estate  for  Life.     Ch.  II.  s.  5—7. 

wood,  and  have  been  usually  cut  down  at  certain  periods,,  it  was 
formerly  held  that  it  was  not  waste  to  cut  them  down  at  that 
time ;  but  I  can  find  no  modern  decision  on  this  point,  (a)  l 

6.  By  the  custom  of  some  countries,  certain  trees  not  usually 
considered  as  timber,  are  deemed  to  be  such,  being  there  used  for 
building. 

7.  [Birch  trees  are  considered  timber  in  Yorkshire  and  Cum- 
berland.! Beech,  cherry,  and  aspen,  in  Buckinghamshire.^  Beech 

also  in  Gloucestershire  §  and  Bedfordshire.  ||     Beech  and 
117  *     *  willow  in  Hants.^]"    In  some  places,  whitethorn,  holly  ;ff 

(a)  Bullen  v.  Denning,  5  B.  &  C.  842,  851.     22  Vin.  Ab.  442.     (Smith  r.  Williams,  Gwill. 
Tithe  Cas.  608.) 


Therefore  where  the  land  is  wild  and  uncultivated,  and  covered  with  timber,  the  tenant 
may  fell  a  reasonable  portion  of  it,  so  as  to  render  the  land  fit  for  cultivation;  but  if  he 
cut  down  all  the  trees,  so  as  permanently  to  injure  the  inheritance,  it  is  waste.  Jack- 
son v.  Brownson,  7  Johns.  227.  And  see  4  Kent,  Comm.  76;  Hickman  v.  Irvine.  3 
Dana,  123;  Parkins  v.  Coxe,  2  Hayw.  339;  Keeler  v.  Eastman,  11  Verm.  K.  293 ; 
Padelford  v.  Padelford,  7  Pick.  152.  So,  in  those  States  where  a  widow  is  dowable 
of  wild  lands,  she  is  permitted  to  clear  up  a  reasonable  proportion  of  them.  Hastings 
r.  Crunckleton,  3  Yeates,  261 ;  Findlay  t\  Smith,  6  Munf.  134,  148,  per  Eoane,  J.  And 
it  seems,  that  she  may  convert  timber  into  staves  and  shingles,  where  such  has  been  the 
ordinary  and  is  the  only  beneficial  use  that  she  can  make  of  the  land.  Ballentine  v. 
Poyner,  2  Hayw.  110  ;  and  may  cut  down  timber  for  any  necessary  uses,  if  enough  is 
left  for  permanent  use,  and  the  estate  is  not  materially  injured.  Owen  v.  Hyde,  6  Yerg. 
334.  And  generally,  where  a  prudent  owner  would  clear  off  the  timber,  and  doing  so 
increases  the  value  of  the  entire  premises,  it  seems,  in  the  United  States,  not  to  be  held 
waste  in  the  tenant  if  he  does  so.  Givens  v.  McCalmont,  4  Watts,  463,  per  Huston, 
J.;  Chase  r.  Hazelton,  7  N.  Hamp.  R.  171;  Keeler  v.  Eastman,  11  Verm.  R.  293. 
Whether  the  fact  that  the  cutting  of  the  trees,  though  not  required  for  estovers,  was  in 
truth  no  injury  to  the  inheritance,  nor  violation  of  the  rules  of  good  husbandry,  is  suf- 
ficient to  absolve  the  tenant  from  the  charge  of  waste,  provided  it  were  not  actually  a 
benefit  to  the  estate,  and  were  an  act  of  disinherison,  quaere ;  and  see  Livingston  v.  Rey- 
nolds, 26  Wend.  115,  117,  122  ;  Owen  v.  Hyde,  6  Yerg.  334.  See  Rector,  &c.  of  Hamp- 
ton v.  Titus,  1  Allen,  N.  B.  R.  278  ;  [Crockett  v.  Crockett,  2  Ohio,  N.  S.  180  ;  More- 
house v.  Cotheal,  2  New  Jer.  521  ;  McCullough  v.  Irvine,  13  Penn.  State  R,  (I  Harris,) 
438;  People  v.  Davison,  4  Barb.  Sup.  Ct.  109;  Davis  v.  Gilliam,  5  Ired.  Eci.  308.] 

1  Where  oaks  or  other  timber  trees  are  so  abundant  as  to  be  customarily  used  for 
fuel,  the  tenant  may  cut  them  for  that  purpose.     Padelford  v.  Padelford,  7  Pick.  152. 

[t  Cumberland's  case,  Moore,  812;  Pinder  v.  Spencer,  Noy,  30.] 

[  t  Co.  Lit.  53,  a;  Anon,  2  Eoll,  Rep.  83;  Aubrey  v.  Fisher,  10  East,  446  ;  Wright 
v.  Powle,  Gwill.  Tithe  Ca.  357  ;  Bibye  v.  Huxley,  Bunb.  192.] 

[  §  Rex  v.  Minchin  Hampton,  3  Burr.  1309 ;  Abbott  v.  Hicks,  1  Wood.  Tithe  Ca. 
319  ;  Welbank  v.  Hayward,  3  Wood,  512.] 

[  ||  Bibye  v.  Huxley,  2  Wood,  237.] 

[  f  Layfield  v.  Cowper,  1  Wood,  330;  Guffley  v.  Pindar,  Hob.  219.] 

[  tt  Pinder  v.  Spencer,  Noy,  30;  1  Inst.  53,  a.  note  (10.)] 


Title  III.     Estate  for  Life.     Ch.  II.  s.  7—10.  123 

blackthorn  ;f  horsechestnut,  lime,  yew,  walnut,  crab,  and  horn- 
beam ;  ±  in  other  districts,  pollards  or  other  timber  trees  which 
have  been  lopped  are,  contrary  to  general  estimation,  also  con- 
sidered timber.§] 

8.  If  a  tenant  for  life  tops  timber  trees,  or  does  any  thing  else 
which  causes  them  to  decay,  it  is  waste.  So  if  he  suffers  the 
young  germins  or  shoots  to  be  destroyed,  or  stubs  them  up.  (a) 

9.  Lord  Coke  says  that  cutting  down  willows,  birch,  beech, 
asp,  maple,  or  the  like,  standing  in  the  defence  and  safeguard 
of  a  house,  is  waste  j1  as  also  the  stubbing  up  a  quickset  fence  of 
whitethorn,  or  suffering  it  to  be  destroyed.  He  also  states  that 
cutting  dead  wood  is  not  waste  ;  but  that  turning  of  trees  to  coals 
for  fuel,  when  there  is  sufficient  dead  wood,  is  waste.  [But  it 
seems  to  be  now  settled  that  if  a  bare  tenant  for  life  cuts  down 
decayed  timber,  it  is  waste. ||]  (b)  2 

10.  All  tenants  for  life  have  a  right  to  cut  down  coppices  and 
underwoods,  at  seasonable  times,  according  to  the  custom  of  the 
country ;  for  no  advantage  can  arise  to  a  tenant  for  life  from 
woods  of  this  kind,  but  by  the  sale  of  them.  It  was,  however, 
held,  in  a  modern  case,  that  a  tenant  for  life  has  no  property  in 
the  underwood  till  his  estate  comes  into  possession ;  and  cannot 
have  an  account  of  what  was  cut  wrongfully  by  a  preceding 
tenant.(c)  [As  to  what  may  be  considered  underwood,  the  reader 
is  referred  to  the  King  v.  Ferrybridge,  the  reporter's  note  and  the 
cases  there  cited.]  (d) 

(a)  1  Inst.  53.  a.    Dyer,  65.  a.  (b)  1  Inst.  53.  a. 

(c)  Pigot  v.  Bullock,  1  Ves.  jun.  479.  (d)  1  Barn.  &  Cress.  375,  379. 

[  t  Cook  v.  Cook,  Cro.  Car.  531.] 

[  i  Duke  of  Chandos  v.  Talbot,  2  P.  Will.  606  ;  Walton  v.  Tryon,  Gwill.  832.] 

[  §  Soby  v.  Molyns,  Plow.  470  ;  Anon,  Gwill.  165  ;  Duke  of  Chandos  v.  Talbot,  tibi 
supra.] 

[  ||  Perrot  v.  Perrot,  3  Atk.  94  ;  and  see  Whitfield  v.  Bewit,  2  P.  Will.  240 ;  S.  C 
3  Ibid.  266  ;  see  also  Wickham  v.  Wickham,  19  Ves.  419.] 

1  But  if  he  cuts  down  pollard  willow  trees,  leaving  the  stools  or  butts,  from  which 
they  will  shoot  afresh,  it  is  not  waste ;  provided  they  are  not  timber  by  the  custom  of 
the  country,  and  do  not  serve  for  shelter  or  ornament  to  the  house,  or  to  protect  the 
bank  of  a  river,  or  are  not  intended  as  a  permanent  shade  to  beasts  while  depasturing. 
Phillips  v.  Smith,  14  M.  &  W.  589. 

2  If  the  tenant,  in  the  course  of  good  husbandry,  removes  dead  and  decaying  trees, 
whether  for  the  purpose  of  clearing  the  land,  or  giving  the  green  timber  a  better  op- 
portunity to  come  to  maturity,  it  has  been  held  not  to  be  waste.  Keeler  v.  Eastman, 
11  Verm.  Pv.  293;  [Crockett  v.  Crockett,  2  Ohio,  N.  S.  180.] 


124         Title  III.     Estate  for  Life.     Ch.  II.  s.  11—16. 

11.  Waste  may  be  done  in  houses,  by  pulling  them  down,  or 
by  suffering  them  to  be  uncovered,  whereby  the  timbers  become 
rotten.  If,  ^however,  a  house  be  uncovered  when  the  tenant 
comes  in,  it  is  no  waste  to  suffer  it  to  fall  down ;  but  it  would 
be  waste  to  pull  it  down,  unless  it  is  rebuilt,  (a) 

12.  If  a  lessee  for  life  razes  a  house,  and  builds  a  new  one> 
which  is  not  so  large  as  the  former,  it  is  waste.1     But 

118  *     where  an  *  old  house  falls  down,  and  the  tenant  builds  a 
new  one,  it  need  not  be  so  large  as  the  old  one.  (b) 

13.  If  glass  windows,  though  put  in  by  the  tenant  himself, 
be  broken  or  carried  away,  it  is  waste.  So  it  is  of  wainscot 
benches,  doors,  furnaces,  and  the  like,  annexed  or  fixed  to  the 
house,  either  by  the  reversioner  or  the  tenant,  (c)  2 

14.  A  tenant  for  life  cannot  dig-  for  gravel,  lime,  clay,  brick, 
earth,  stone,  or  the  like,  unless  for  the  reparation  of  buildings,  or 
manuring  of  the  land.  Nor  can  he  open  a  new  mine ;  but  he 
may  dig  and  take  the  profits  of  mines  that  are  open,  (d)  3 

15.  Lord  King  has  said  that  a  tenant  for  life  of  coal  mines, 
may  open  new  pits  or  shafts  for  working  the  old  veins  of  coals  ; 
for  otherwise  working  the  same  mines  would  be  impractica- 
ble, (e) 

16.  If  a  person  has  mines  within  his  land,  and  leases  the  land, 

(a)  1  Inst.  53.  a.  (b)  Bro.  Ab.  Waste,  93.  (c)  1  Inst.  53.  a. 

(d)  1  Inst.  53.  b.  54.  b.     Saunders's  case,  5  Eep.  12. 

(e)  Clavering  v.  Clavering,  2  P.  Wms.  388.  (Findlay  v.  Smith,  6  Munf.  134  ;  Crouch  v. 
Puryear,  1  Rand.  253.) 


1  So,  if  he  changes  the  nature  of  the  house  by  altering  it  injuriously,  as  by  changing 
it  into  a  warehouse,  with  machinery  for  raising  heavy  packages,  it  is  waste.  Douglass 
v.  Wiggins,  1  Johns.  Ch.  437  ;  Bonnett  v.  Sadler,  14  Ves.  526.  And  see  Doe  v.  Jones, 
4  B.  &  Ad.  126  ;  Hasty  v.  Wheeler,  3  Fairf.  434,  439.  But  if  the  alteration  is  not  inju- 
rious either  to  the  building  or  to  the  title  and  inheritance,  it  is  not  waste.  Young  v. 
Spencer,  10  B.  &  C.  145. 

2  See  Amos  and  Ferard  on  Fixtures,  part  1,  where  the  nature  of  this  kind  of  prop- 
erty, and  the  rights  of  different  classes  of  tenants  therein,  are  fully  treated. 

3  Whether  the  tenant  can  work  old  abandoned  mines  or  pits,  which  the  author  of  the 
gift  has  neither  worked  nor  prepared  to  work,  or  which  he  has  not  worked  but  has  made 
preparations  to  work,  —  quaere;  and  see  Viner  v.  Vaughan,  2  Beav.  446;  4  Jur.  332. 
[A  tenant  for  life  of  land  containing  opened  coal  mines,  may  take  coal  therefrom  not 
only  for  his  own  use,  but  for  sale ;  and  he  may  also  take  timber  from  the  premises  for 
mining  operations.  Neel  v.  Neel,  19  Penn.  (7  Harris,)  323.  Opening  anew  mine  in 
leased  land  is  waste,  unless  the  lease  is  of  all  mines  in  the  land.  Owings  v.  Emery, 
6  Gill.  260.1 


Title  III.     Estate  for  Life.     Ch.  II.  s.  16—19.        125 

and  all  mines  therein,  the  lessee  may  dig  for  them  ;  for  otherwise 
he  can  derive  no  advantage  from  the  mines,  (a) 

17.  "Where  a  person  seised  in  fee  of  lands,  in  which  there  were 
mines  unopened,  conveyed  those  lands,  and  all  mines,  &c,  to 
trustees  and  their  heirs,  to  the  use  of  A  for  life,  &c,  A  having 
threatened  to  open  the  mines,  the  reversioner  brought  in  a  bill 
in  Chancery  to  stay  him.  It  was  argued  on  behalf  of  A  that 
the  mines  being  expressly  granted  by  the  settlement  with  the 
lands,  it  was  as  strong  a  case  as  if  the  mines  themselves  were 
limited  to  A  for  life,  and  like  Saunders's  case.  But  Lord  Mac- 
clesfield said,  that  A,  having  only  an  estate  for  life,  subject  to 
waste,  could  no  more  open  a  mine,  than  cut  down  timber  trees. 
On  a  rehearing,  Lord  King  was  of  the  same  opinion.  (&) 

18.  The  conversion  of  one  kind  of  land  into  another,  as  the 
changing  of  meadow  to  arable,  is  also  waste;  because  it  not 
only  changes  the  course  of  husbandry,  but  also  the  evidence  of 
the  estate.  In  a  subsequent  case  it  was  said  arguendo,  that  the 
ploughing  of  pasture  may  be,  or  may  not  be,  waste;  and  to 
make  it  such,  it  ought  to  have  been  pasture  time  out  of  mind. 
It  was  not  enough  to  say  that  it  was  pasture  ground  diu  ante. 
Mr.  Justice  Jones  said,  arable  and  pasture  ground  are  convertible  ; 
and  that  which  is  one  of  them  this  year  may  be  the  other  next, 
for  the  law  does  not  so  much  distinguish,  (c) 

19.  The  plowing  up,  burning  and  sowing  of  down  land,  is 
waste.     But  in  the  present  improved  state  of  agriculture, 

I  *  presume  that  the  old  doctrine  respecting  a  change  of  the     *  119 
course  of  husbandry  would  not  be  strictly  adhered  to.  (d)  1 

(a)  Saunders's  case,  5  Rep.  12. 

(b)  Whitfield  v.  Bewit,  2  P.  Wms.  240. 

(c)  1  Inst.  53.  b.  Dyer,  37.  a.  Gunning  v.  Gunning,  2  Show.  R.  8.  (Simmons  v.  Norton. 
7  Bing.  640.) 

{<!)  Wprsley  v.  Stewart,  infra,  s.  35. 


1  See  Harrow  School  v.  Alderton,  2  B.  &  P.  86 ;  3  Dane's  Abr.  ch.  78,  art.  5.  If  the 
tenant  by  an  act  of  good  husbandry,  causes  an  injury  which  due  prudence  could  not  have 
foreseen,  it  shall  not  make  him  a  wrongdoer.  Thus,  where  he  prudently  turned  the 
current  of  a  creek,  whereby  the  water  flowed  into  a  swamp,  and  killed  the  trees  grow- 
ing there  ;  it  was  held  no  waste.  Jackson  d.  Van  Rensellaer  v.  Andrew,  18  Johns.  431. 
[The  doctrine  of  waste,  as  understood  in  England,  is  not  applicable  to  a  new  and  unset- 
tled country.  Kidd  v.  Dcnnison,  6  Barb.  Sup.  Ct.  9.  In  Ohio,  it  would  not  be  waste 
to  convert  meadow  or  pasture  into  plough  land,  or  wood  land  into  a  farm.  Crockett  v. 
Crockett.  2  Ohio,  N.  S.  180.  See  also  Clemence  v.  Steere,  1  Rhode  Island,  272.] 
11* 


126         Title  III.     Estate  for  Life.     Ch.  II.  s.  20—23. 

20.  As  some  chattels  are  considered  in  law  as  part  of  the  in- 
heritance, and  called  heir  looms,  so  the  destruction  of  them  is 
waste.  Thus,  if  a  tenant  for  life  of  a  park,  vivary,  warren,  or 
dove-house,  lolls  so  many  of  the  deer,  fish,  game,  or  doves,  that 
there  is  not  sufficient  left  for  the  stores,  it  is  waste,  (a)  1 

21.  Permissive  waste  chiefly  consists  in  suffering  the  buildings 
on  an  estate  to  decay.  But  if  a  house  be  ruinous  at  the  time 
when  the  tenant  for  life  comes  into  possession,  he  is  not  punish- 
able for  suffering  it  to  fall  down ;  for  in  that  case  he  is  not  bound 
by  law  to  repair  it.  Yet  if  he  cuts  down  timber,  and  therewith 
repairs  it,  he  may  justify ;  because  the  law  favors  the  mainten- 
ance of  houses,  (b)  2 

22.  The  Court  of  Chancery  will  not  decree  a  tenant  for  life 
to  repair,  or  appoint  a  receiver,  with  directions  to  repair ;  for  it 
would  tend  to  harass  tenants  for  life ;  and  suits  of  this  kind 
would  be  attended  with  great  expenses,  in  depositions  about  re- 
pairs, (c) 

23.  It  is  a  general  rule  that  waste  which  ensues  from  the  act 
of  God  is  excusable.  So  that  if  a  house  falls  in  consequence  of 
a  tempest,  the  tenant  will  be  excused.  But  where  a  house  is  un- 
covered by  a  tempest,  the  tenant  is  bound  to  repair  it  within  a 
reasonable  time,  before  the  timbers  grow  rotten,  (d) 

(or)  Tit.  1.     1  Inst.  53.  a.  2—304.  (6)  1  Inst.  53.  a.  54.  b. 

(c)  Wood  v.  Gaynon,  Amb.  395.  (d)  2  Eoll.  Ab.  820. 


1  Tenant  for  life  of  heir  looms,  or  other  chattels,  may  be  required  to  give  an  in- 
ventory of  them,  and  an  undertaking  to  take  proper  care  of  the  property  ;  but  not  to 
give  other  security,  unless  danger  is  apprehended.  Foley  v.  Burnell,  1  Bro.  C.  C.  274, 
279  ;  Conduitt  v.  Soane,  1  Colly.  285. 

2  If  he  cuts  timber  for  repairs,  but  finding  it  not  perfectly  suitable,  sells  it,  and  with 
the  money  buys  suitable  timber  and  applies  it  to  the  same  purpose,  it  is  not  waste. 
Loomis  v.  Wilbur,  5  Mason,  R.  13. 

[A  tenant  for  life  is  required  to  keep  the  buildings  on  his  estate  from  going  to  decay, 
by  using  ordinary  care ;  but  he  is  not  required  to  expend  any  extraordinary  sums. 
Wilson  v.  Edmonds,  4  Foster  (N.  H.)  517.  A  tenant  for  life  who  puts  improvements 
on  the  land,  is  not,  as  a  general  rule,  entitled  to  compensation  from  the  reversioner. 
Corbett  v.  Laurens,  5  Rich.  Eq.  301.  But  where  such  improvements  are  for  the  mutual 
advantage  of  the  tenant  for  life  and  the  reversioner,  the  tenant  for  life  will  be  allowed 
their  value  out  of  the  proceeds  of  sale,  if  the  sale  is  made  for  the  benefit  of  all  inter- 
ested in  the  property.  Gambril  v.  Gambril,  3  Md.  Ch.  Decis.  259.  See  also  Daviess 
v.  Myers,  13  B.  Mon.  511.  It  is  waste  in  a  tenant  for  life  to  pull  down  a  house  which 
is  not  reparable,  and  which,  therefore,  he  is  not  bound  to  repair ;  but  it  is  no  waste  to 
tear  down  a  barn  which  is  so  dilapidated  that  there  is  danger  that  it  will  fall  upon  the 
cattle.    Clemence  v.  Steere,  1  Rhode  Island,  272.] 


Title  III.     Estate  for  Life.     Ch.  II.  s.  24—26.        127 

24.  If  the  banks  of  a  river  are  destroyed  by  a  sudden  flood,  it 
is  not  waste.  If,  however,  the  banks  of  the  river  Trent  are  un- 
repaired, it  is  waste ;  because  the  Trent  is  not  so  violent,  but 
that  the  lessee,  by  his  industry,  may  well  enough  preserve  its 
banks,  (a) 

25.  By  the  common  law,  where  lands  were  granted  to  a  per- 
son for  life,  he  was  not  liable  to  an  action  for  waste  unless  he 
was  restrained  by  express  words  in  his  conveyance,  from  com- 
mitting waste ;  because  it  was  in  the  power  of  the  person  who 
created  the  estate  to  impose  such  terms  on  his  tenant  as  he 
thought  proper.  This  doctrine  was  found  extremely  inconven- 
ient, as  tenants  took  advantage  of  the  ignorance  of  their  land- 
lords, and  committed  acts  of  waste  with  impunity,  (b) 

26.  To  remedy  this  grievance  the  Statute  of  Marlbridge,  52 
Hen.  III.  c.  24,  gave  to  the  owners  of  the  inheritance  an 
action  *  of  waste  against  tenants  for  life  ;  in  which  they  *  120 
were  entitled  to  recover  full  damages  for  the  waste  com- 
mitted. But  as  the  recompense  given  by  this  statute  was  fre- 
quently inadequate  to  the  loss  sustained,  the  Statute  of  Glouces- 
ter, 6  Bdw.  I.  c.  5,  increased  the  punishment,  by  enacting  that 
the  place  wasted  should  be  recovered,  together  with  treble 
damages,  as  an  equivalent  for  the  injury  done  to  the  inheri- 
tance. (c)1 

(a)  1  Inst.  53.  b.     Dyer,  33.  a.     Moo.  69. 

(5)  Blackst.  Com.  B.  3.  c.  14.     (1  Inst.  53.  b.  54.  a.)  (c)  2  Inst.  144,  299. 


1  This  subject  is  variously  regulated  by  statutes,  in  most  of  the  United  States.  Thus, 
in  South  Carolina,  damages  alone  are  given,  without  forfeiture,  by  a  reenactment  of  the 
statute  of  Marlbridge.  2  Brevard's  Dig.  p.  331.  In  Pennsylvania,  the  writ  of  estrepe- 
ment  is  used,  against  lessees  for  years  and  at  will,  mortgagors  and  judgment  debtors. 
4  Kent,  Cornm.  p.  78;  Purdon's  Dig.  p.  965,  5th  ed.  In  Maryland,  the  remedy  is  by 
injunction,  with  the  penalty  of  double  damages  for  disobeying  the  writ.  Dorsey's  LL. 
Maryl.  Vol.  I.  p.  224,  225 ;  [Green  v.  Keen,  4  Md.  98.]  In  other  States  the  remedy  is 
by  writ  of  waste,  with  a  forfeiture  of  the  place  wasted,  and  damages.  These  damages 
are  single,  in  Maine,  Rev.  St.  ch.  129,  §  1 ;  Massachusetts,  Rev.  St.  ch.  105,  §  1 ;  and  in 
Michigan,  Rev.  St.  1838,  p.  496.  They  are  double  in  Rhode  Island,  Rev.  St.  1844,  p.  186  ; 
and  in  Delaware,  Rev.  St.  1829,  p.  166, 167.  They  are  treble  in  New  York,  Rev.  St.  Vol.  II. 
p.  428,  429,  3d  ed.;  New  Jersey,  Elmer's  Dig.  p.  593  ;  Virginia,  Tate's  Dig.  p.  517,  51S ; 
North  Carolina,  LL.  N.  Car.  Vol.  I.  p.  609;  and  Kentucky,  LL.  Ky.  Vol.  II.  p.  1530, 
tit.  178.  [The  Statute  of  Gloucester  has  not  been  adopted  in  Georgia.  Parker  v.  Cham- 
bliss,  12  Geo.  235.] 

In  other  States,  the  legislation  on  this  subject  is  confined  to  tenants  in  dower.  And 
they  are  made  liable  to  damages  only,  with  no  mention  of  forfeiture,  by  the  statutes  of 
New  Hampshire,  Rev.  St.  1842,  ch.  165,  §  7 ;  Vermont,  Rev.  St.  1839,  ch.  51,  §  14;  and 


128         Title  III.     Estate  for  Life.     Ch.  II.  s.  27—29. 

27.  No  person  is  entitled  to  an  action  of  waste  against  a  tenant 
for  life,  but  he  who  has  the  immediate  estate  of  inheritance,  ex- 
pectant on  the  determination  of  the  estate  for  life.1  If  there  is 
an  estate  of  freehold  in  esse,  interposed  between  the  estate  of  the 
tenant  for  life  who  commits  waste,  and  the  subsequent  estate  of 
inheritance,  then  during  the  continuance  of  such  interposed 
estate  the  action  of  waste  is  suspended ;  and  if  the  first  tenant 
for  life  dies  during  the  continuance  of  such  interposed  estate,  the 
action  is  gone  forever,  (a)  2 

28.  Where  a  tenant  for  life  commits  waste,  and  afterwards 
assigns  over  his  estate,  yet  an  action  of  waste  may  be  brought 
against  him.  (&)  3 

29.  If  a  woman  lessee  for  life  marries,  and  her  husband  com- 
mits waste,  and  after  the  wife  dies,  the  action  of  waste  is  gone ; 
for  the  husband  never  had  any  estate  but  in  right  of  his 
wife,  (c)  4 

(a)  1  Inst.  53.  b.  218.  b.  n.  2.    Paget's  case,  5  Kep.  76.  b.    Bray  v.  Tracey,  Cro.  Jac.  688. 
(6)  2  Inst.  302.  (c)  Clifton's  case,  5  Rep.  76. 


Mississippi,  Howard  &  Hutchinson's  Dig.  p.  351 ; — to  forfeiture,  with  single  damages, 
in  Indiana,  Rev.  St.  1843,  part  2,  ch.  28,  §  106  ; — and  to  forfeiture  only,  with  no  men- 
tion of  damages,  in  Ohio,  Rev.  St.  1841,  ch.  42,  §  15;  and  in  Illinois,  Rev.  St.  1833, 
p.  237.  But  in  the  latter  State,  the  forfeiture  is  incurred  only  by  wanton  and  wilful 
waste;  the  dowress  being  liable,  for  "negligent  or  inadvertent  waste,"  to  damages  only. 
See  further,  Smith  v.  Follansbee,  1  Shepl.  273 ;  Sackett  v.  Sackett,  8  Pick.  309 ;  Hasty 
v.  Wheeler,  3  Fairf.  434 ;  Bright  v.  Wilson,  Cam.  &  Norw.  24 ;  Robinson  v.  Miller, 
2  B.  Monr.  284,  292. 

1  Hence,  at  common  law,  the  heir  could  not  have  this  action,  for  waste  done  in  the 
lifetime  of  the  ancestor.  1  Inst.  53,  b.  But  in  several  of  the  United  States  this  remedy 
is  given  to  the  heir  by  statute.  Maine,  Rev.  St.  ch.  129,  §  2;  Massachusetts,  Rev.  St. 
ch.  105,  §  2;  New  York,  Rev.  St.  Vol.  II.  p.  428,  3d  ed.;  New  Jersey,  Elmer's  Dig. 
p.  593;  Delaware,  Rev.  St.  1829,  p.  167;  Virginia,  Tate's  Dig.  p.  518;  North  Carolina, 
LL.  N.  Car.  Vol.  I.  p.  610;  Kentucky,  LL.  Ky.  Vol.  II.  p.  1531 ;  Michigan,  Rev.  St. 
1838,  p.  496.     See  also  McLaughlin  v.  Long,  5  Har.  &  Johns.  113. 

2  In  Indiana,  the  remainder-man  or  reversioner  may  have  an  action  of  waste,  not- 
withstanding an  interposed  estate  for  life  or  years.  Rev.  St.  1843,  p.  452.  So,  in 
Michigan,  Rev.  St.  1838,  p.  496  ;  Maine,  Rev.  St.  ch.  129,  §  5  ;  Massachusetts,  Rev.  St. 
ch.  105,  §  5. 

3  By  Stat.  11  Hen.  6,  c.  5,  if  tenant  for  life  or  years  assigns  his  estate,  but  continues 
still  to  take  the  profits  to  his  own  use,  he  is  liable  to  this  action  for  waste  afterwards 
committed.  This  statute  has  been  reenacted  in  several  of  the  United  States.  See 
Tate's  Big.  LL.  Virg.  p.  518;  Elmer's  Dig.  LL.  N.Jersey,  p.  593;  North  Carolina, 
Rev.  St.  Vol.  I.  ch.  119,  p.  609  ;  Delaware,  Rev.  St.  1829,  p.  166  ;  LL.  Kentucky,  Vol. 
II.  p.  1530  ;  N  York,  Rev.  St.  Vol.  II.  p.  428.  3d  ed. 

4  The  husband  is  in  such  case  still  held  liable,  by  statute,  in  Delaware.  Rev.  St. 
1829,  p.  166. 


Title  III.     Estate  for  Life.     Ch.  II.  s.  30—31.         129 

30.  The  Statute  of  Marlbridge  only  prohibits  farmers  from 
committing  waste ;  yet  if  they  suffer  a  stranger  to  do  ivaste,  they 
shall  be  charged  with  it ;  for  it  is  presumed  in  law  that  the  farmer 
may  withstand  it ;  et  qui  non  obstat,  quod  obstare  potest,  facere 
videtur.  Secondly,  the  law  gives  to  every  man  his  proper  action  ; 
therefore  the  lessor  shall  have  his  action  of  waste  against  the 
lessee ;  and  the  lessee  his  action  of  trespass  against  the  person 
who  committed  the  waste,  (a) 

(31.  By  the  common  law,  the  action  of  waste  did  not  lie, 
except  against  those  who  came  to  their  estates  by  act  of  law,  as, 
tenants  by  the  curtesy,  or  in  dower.  For  as  the  law  gave  the 
estate,  without  and  even  against  the  will  of  the  party,  it  was 
reasonable  that  the  reversioner  should  have  this  remedy,  for  the 
protection  of  the  inheritance.  And  hence  this  action  lay  against 
such  tenant,  as  long  as  he  lived,  even  for  waste  done  by  one  to 
whom  he  had  assigned  over  his  estate  ;  and  did  not  lie  against 
the  assignee,  who  was  deemed  only  his  servant.  Which  law, 
says  Lord  Coke,  continueth  to  this  day.  The  Statutes  of  Marl- 
bridge  and  of  Gloucester  gave  the  action  of  waste,  in  general 
terms,  against  every  tenant,  holding  in  any  manner  for  life  or 
years  ;  but  this  was  held  not  to  supersede  nor  affect  the  remedy 
already  existing  by  the  common  law,  which  is  always  esteemed 
the  safer  and  better  remedy.  But  if  the  heir  grants  away  the 
reversion,  and  the  tenant  also  assigns  his  estate,  the  assignee 
attorning  to  the  grantee  of  the  reversion,  a  new  estate  for  life 
is  thus  created  by  act  of  the  parties.1  The  remedy  at  common 
law  is,  therefore,  gone,  and  the  action  of  waste  lies  only  by  force 
of  the  statute,  and  hence  it  lies  against  the  wrongdoer  himself. 
So,  if  the  heir  grants  away  the  reversion,  and  the  tenant  in  dower 
or  by  the  curtesy  attorns  to  the  grantee,  a  new  estate  for  life  is 
here  created  by  act  of  the  parties,  and  the  grantee  of  the  rever- 
sion can  sue  only  upon  the  statute,  the  remedy  at  common  law 
having  failed.2) 

(a)  (2  Inst.  145,  146.  1  Inst.  54.  a.  White  v.  Wagner,  4  H.  &  J.  373.  Fay  v.  Brewer,  3 
Pick.  203.) 

1  Registrum  Brevium,  fol.  72,  b.  73  ;  2  Inst.  301,  F.  N.  B.  [56.] 

2  2  Inst.  300,  301,  F.  N.  B.  [56,]  128,  129;  Thel.  Dig.  lib.  10,  c.  21,  §  10,  11,  fol. 
112  ;  22  Yin.  Abr.  468,  475  ;  Waste,  S.  U. ;  Jackson  on  Real  Actions,  p.  331 ;  Bates 
v.  Shraeder,  13  Johns.  260.  Walker's  case,  3  Co.  23,  b.  But  in  Delaware,  the  assignee, 
if  lie  commits  waste,  is  made  liable  in  all  cases,  in  the  same  manner  as  the  assignor. 
See  Delaware,  Rev.  St.  1829,  p.  166.     So,  in  N.  York,  Rev.  St.  Vol.  II.  p.  428,  3d  ed. 


130         Title  III.     Estate  for  Life.     Ch.  II.  s.  32—33. 

32.  The  late  Mr.  Serjeant  Williams,  in  his  excellent  Notes  on 
Saunders's  Reports,  observes  that  the  action  for  waste  is  now 
very  seldom  brought ;  f  having  given  way  to  a  much  more  ex- 
peditious and  easy  remedy  by  an  action  on  the  case,  in  the  nature 
of  waste;  which  may  be  brought  by  the  person  in  reversion 
or  remainder  for  life  or  years,  as  well  as  in  fee ;  and  the  plaintiff 
is  entitled   to  costs ;    which   he  cannot   have   in   an  action  of 

waste,  (a) 
121  *         *  33.   Lord  Cowper  says,  that  without  some  particular 

circumstances,  there  is  no  remedy  in  law  or  equity,  for 
permissive  waste,  after  the  death  of  the  particular  tenant,  (b) 

[But  in  the  recent  case  of  Marquis  of  Lansdowne  v.  The 
Marchioness  Dowager  of  Lansdowne,  it  was  decided  that  a  bill 
might  be  maintained  against  the  representatives  of  a  deceased 
tenant  for  life  for  equitable  waste  committed  by  him  ;  and  that, 
although  according  to  the  maxim  actio  personalis  moritur  cum 
persond,  yet  if  the  tort  or  injury  is  of  such  a  nature  as  that 
thereby  property  is  acquired  which  benefits  the  testator,  there  an 
action  for  the  value  of  the  property  shall  survive  against  the 
executory  at  law,  for  legal  waste ; '  and  that  equity  would  decide 
in  respect  of  equitable  waste,  in  analogy  to  a  court  of  law.  In 
the  above  case,  the  late  Marquis  of  Lansdowne,  tenant  for  life 
without  impeachment  of  waste,  had  abused  his  power  of  cutting 
down  timber,  by  cutting  ornamental  trees,  and  trees  not  fit  for 
felling.]  (c) 

(a)  2  Saund.  252.  n.  7.  (b)  Turner  v.  Buck,  22  Viu.  Ab.  523. 

(c)  1  Marl.  116.  Garth  v.  Cotton,  1  Dick.  183.  S.  C.  3  Atk.  751.  1  Ves.  S.  524,  546. 
Cowp.  376. 

[  t  The  writ  of  waste  is  abolished  after  1st  June,  1835,  by  Stat.  3  &  4  Will.  4,  c.  27. 
s.  36.     See  Vol.  III.  tit.  31,  ch.  2,  sect.  5,  note.] 

[J  By  Stat.  3  &  4  Will.  4,  c.  42,  s.  2,  remedies  by  action  of  trespass  or  trespass  on 
the  case,  are  given  against  the  executors  of  any  deceased  person,  for  any  wrong  com- 
mitted by  him  in  his  lifetime  against  the  property,  real  or  personal,  of  another,  commit- 
ted within  six  months  before  the  death,  the  action  to  be  brought  within  six  months 
after  the  executors,  &c..  have  taken  upon  themselves  the  administration  of  the  effects 
of  the  deceased.  Similar  remedies  are  given  to  executors  for  injuries  done  to  the  prop- 
erty real  or  personal  of  their  testators.] 

1  Where  property  is  tortiously  acquired,  the  value  may  be  recovered,  in  assumpsit, 
against  the  legal  representatives  of  the  wrongdoer.  Hambly  v.  Trott,  Cowp.  375. 
And  where,  in  such  case,  an  action  ex  delicto  is  brought  against  the  wrongdoer,  and  he 
dies  pendente  lite,  the  suit,  in  several  of  the  United  States,  is  made  by  statute  to  survive 
against  his  executor  or  administrator,  who  may  be  called  in  to  defend  it. 


Title  III.  .  Estate  for  Life.     Ch.  II.  s.  34.  131 

34.  It  is  stated  in  1  Roll's  Ab.  377,  pi.  13,  that  if  there  be 
lessee  for  life,  the  remainder  for  life,  the  remainder  or  reversion 
in  fee,  and  the  lessee  in  possession  wastes  the  land ;  though  he 
is  not  punishable  by  the  common  law,  during  the  remainder  for 
life,  yet  he  may  be  restrained  in  Chancer?/,  for  this  is  a  particu- 
lar mischief.  And  Lord  Keeper  Egerton  is  reported  to  have 
said  that  he  had  seen  a  precedent  in  the  time  of  Richard  II., 
where,  in  such  a  case,  it  was  decreed  in  Chancery,  by  the  advice 
of  the  judges,  on  complaint  of  the  remainder-man  in  fee,  that  the 
first  tenant  should  not  commit  waste  ;  and  an  injunction  granted. 
The  courts  of  equity  have  long  pursued  this  principle,  and  will 
award  a  perpetual  injunction  against  waste  whenever  the  case 
requires  it.  (a)1 

(«)  Moor.  554. 

1  The  jurisdiction  of  Courts  of  Equity,  in  cases  of  waste,  is  thus  briefly  stated  by 
Mr.  Justice  Story,  in  his  Commentaries  on  Equity  Jurisprudence,  Vol.  II.  §  913 
to  919  :— 

"  There  are  many  cases,  where  a  person  is  dispunishable  at  law  for  committing 
waste,  and  yet  a  Court  of  Equity  will  enjoin  him.  As,  where  there  is  a  tenant  for  life, 
remainder  for  life,  remainder  in  fee,  the  tenant  for  life  will  be  restrained,  by  injunction, 
from  committing  waste,  although  if  he  did  commit  waste,  no  action  of  waste  would  lie 
against  him  by  the  remainder-man  for  life,  for  he  has  not  the  inheritance,  or  by  the 
remainder-man  in  fee,  by  reason  of  the  interposed  remainder  for  life.  Com.  Dig.  ]Vaste, 
C.  3  ;  Abraham  v.  Bubb,  2  Freem.  Ch.  R.  53 ;  Garth  v.  Cotton,  1  Dick.  183,  205,  208  : 
S.  C.  1  Ves.  555  ;  Perrot  v.  Perrot,  3  Atk.  94  ;  Robinson  v.  Litton,  3  Atk.  210 ;  Eden 
on  Injunct.  ch.  9,  p.  162,  163;  Davis  v.  Leo,  6  Ves.  787.  So,  a  ground  landlord  may 
have  an  injunction  to  stay  waste  against  an  under-lessee.  Earrant  v.  Lovell,  3  Atk. 
723 ;  S.  C.  Ambler,  R.  105  ;  3  Wooddes.  Lect.  56,  p. 400 — 404.  So,  an  injunction  maybe 
obtained  against  a  tenant  from  year  to  year,  after  a  notice  to  quit,  to  restrain  him  from 
removing  the  crops,  manure,  &c,  according  to  the  usual  course  of  husbandry.     Onslow 

v. ,  16  Ves.  173  ;  Pratt  v.  Brent,  2  Madd.  R.  62.    So,  it  may  be  obtained  against 

a  lessee,  to  prevent  him  from  making  material  alterations  in  a  dwelling-house;  as,  by 
changing  it  into  a  shop  or  warehouse.     Douglass  v.  Wiggins,  1  Johns.  Ch.  R.  435. 

"In  the  next  place,  Courts  of  Equity  will  grant  an  injunction  in  cases  where  the 
aggrieved  party  has  equitable  rights  only ;  and,  indeed,  it  has  been  said,  that  these 
Courts  will  grant  it  more  strongly,  where  there  is  a  trust  estate.  Robinson  v.  Litton, 
3  Atk.  200  ;  Garth  v.  Cotton,  1  Dick.  183 ;  S.  C.  1  Ves.  555  ;  Stansfield  v.  Habergham, 
10  Ves.  277,  278.  Thus,  for  instance,  in  cases  of  mortgages,  if  the  mortgagor  or  mort- 
gagee in  possession  commits  waste,  or  threatens  to  commit  it,  an  injunction  will  be 
granted,  although  there  is  no  remedy  at  law.  Ibid. ;  Earrant  v.  Lovel,  3  Atk.  723 ; 
Eden  on  Injunct.  ch.  9,  p.  165,  166  ;  3  Wooddes.  Lect.  56,  p.  405  ;  Brady  v.  Waldron, 
2  John.  Ch.  R.  148  ;  Humphreys  v.  Harrison,  1  Jac.  &  Walk.  581  ;  [Gray  v.  Baldwin, 
8  Blackf.  164.]  So,  where  there  is  a  contingent  estate,  or  an  executory  devise  over, 
dependant  upon  a  legal  estate,  Courts  of  Equity  will  not  permit  waste  to  be  done  to 
the  injury  of  such  estate ;  more  especially  not,  if  it  is  an  executory  devise  of  a  trust 


132  Title  III.     Estate  for  Life.     Ch.  II.  s.  35. 

35.  Although  no  action  of  waste  lies  where  there  is  an  inter- 
mediate estate,  yet  if  luaste  be  done  by  felling  timber  trees,  the 
person  entitled  at  that  time  to  the  inheritance  in  fee,  or  in  tail, 

estate.  Stansficld  v.  Havcrgham,  10  Ves.  278  ;  Eden  on  Injunct.  ch.  9,  p.  170,  171  ; 
3  Woocldes.  Lect.  56,  p.  399,  400  ;  Jeremy,  Eq.  Jurisd.  B.  3,  ch.  2,  §  1,  p.  339. 

"  In  the  next  place,  in  regard  to  equitable  waste,  which  may  be  defined  to  be  such 
acts  as  at  law  would  not  be  esteemed  to  be  waste  under  the  circumstances  of  the  case, 
but  which,  in  the  view  of  a  Court  of  Equity,  are  so  esteemed,  from  their  manifest  in- 
jury to  the  inheritance,  although  they  are  not  inconsistent  with  the  legal  rights  of  the 
party  committing  them.  As  if  the  mortgagor  in  possession  should  fell  timber  on  the 
estate  and  thereby  the  security  would  become  insufficient,  (but  not  otherwise,)  a  Court 
of  Equity  will  restrain  the  mortgagor  by  injunction.  King  v.  Smith,  2  Hare  E.  239. 
So,  if  there  be  a  tenant  for  life  without  impeachment  for  waste,  and  he  should  pull 
down  houses,  or  do  other  waste  wantonly  or  maliciously,  a  Court  of  Equity  would 
restrain  him  ;  for,  it  is  said,  a  Court  of  Equity  ought  to  moderate  the  exercise  of  such 
a  power,  and  pro  bono  publico,  restrain  extravagant  humorous  waste.  Abraham  v.  Bubb, 
2  Freem.  Ch.  R.  53  ;  Lord  Barnard's  case,  Free.  Ch.  454  ;  S.'  C.  2  Vera.  738  ;  Aston  i\ 
Aston,  1  Ves.  265.  Upon  this  ground,  tenants  for  life  without  impeachment  for  waste, 
and  tenants  in  tail,  after  possibility  of  issue  extinct,  have  been  restrained,  not  only  from 
acts  of  waste  to  the  destruction  of  the  estate,  but  also  from  cutting  down  trees  planted 
for  the  ornament  or  shelter  of  the  premises.  Ibid  ;  Eden  on  Injunct.  ch.  9,  p.  177  to 
186  :  Burgess  v.  Lamb,  16  Ves.  185,  186;  Marquis  of  Downshire  v.  Sandys,  6  Ves. 
107  ;  Lord  Tamworth  v.  Lord  Ferrars,  6  Ves.  419  ;  Day  v.  Merry,  16  Ves.  375  ;  Att'y. 
General  v.  Duke  of  Marlborough,  3  Madd.  R.  539,  540;  1  Fonbl.  Eq.  B.  1,  ch.  1,  §  5, 
note  (/;)  ;  3  Wooddcs.  Lect.  56,  p.  402.  403  ;  Jeremy  on  Eq.  Jurisd.  B.  3,  ch.  2,  §  1,  p. 
333  to  336  ;  Wellesley  v.  Wcllesley,  6  Sim.  R.  497.  In  all  such  cases,  the  party  is  deemed 
guilty  of  a  wanton  and  unconscientious  abuse  of  his  rights,  ruinous  to  the  interests  of 
other  parties.     [Marker  v.  Marker,  4  Eng.  Law  &  Eq.  Rep.  95.] 

"Upon  similar  grounds,  although  Courts  of  Equity  will  not  interfere  by  injunction 
to  prevent  waste  in  cases  of  tenants  in  common,  or  coparceners,  or  joint  tenants,  be- 
cause they  have  a  right  to  enjoy  the  estate,  as  they  please ;  yet  they  will  interfere  in 
special  cases ;  as,  where  the  party  committing  the  waste  is  insolvent ;  or,  where  the 
waste  is  destructive  of  the  estate,  and  not  within  the  usual  legitimate  exercise  of  the 
right  of  enjoyment  of  the  estate.  Eden  on  Injunct.  ch.  9,  p.  171,  172  ;  Twort  v.  Twort, 
16  Ves.  128,  131;  Hale  v.  Thomas,  7  Ves.  589,  590  ;  Hawley  v.  Clowes,  2  John.  Ch. 
E.  122.  The  Statute  of  Westminster  2d,  ch.  22,  provided  a  remedy  for  tenants  in 
common  and  joint  tenants  in  many  cases  of  waste,  by  providing  that,  upon  an  action  of 
waste,  the  offending  party  should  make  an  election  to  take  the  part  wasted  in  his  pur- 
party,  or  to  find  surety  to  take  no  more  than  belonged  to  his  share.  But  this  statute 
only  applied  to  cases  of  freehold. 

"  From  this  very  brief  view  of  some  of  the  more  important  cases  of  equitable  inter- 
ference in  cases  of  waste,  the  inadequacy  of  the  remedy  at  common  law,  as  well  to 
prevent  waste  as  to  give  redress  for  waste  already  committed,  is  so  unquestionable, 
that  there  is  no  wonder  that  the  resort  to  the  courts  of  law  has,  in  a  great  measure, 
fallen  into  disuse.  The  action  of  waste  is  of  rare  occurrence  in  modern  times— Har- 
row School  v.  Alderton,  2  Bos.  &  Pull.  86  ;  Redfern  v.  Smith,  1  Bing.  R.  3S2  ;  2  Bing. 
R.  262 — an  action  on  the  case  for  waste  being  generally  substituted  in  its  place,  when- 
ever any  remedy  is  sought  at  law.  The  remedy  by  a  bill  in  equity  is  so  much  more 
easy,  expeditious,  and  complete,  that  it  is  almost  invariably  resorted  to.     Eden  on  In- 


Title  III.     Estate  for  Life.   Ch.  II.  s.  35.  133 

may  seize  them,  or  bring  an  action  of  trover  for  the  recovery  of 
them.  For  a  tenant  for  life  has  but  a  special  interest  in  the 
trees  growing  on  the  land,  so  long  as  they  are  annexed  to  it ;  but 
if  he  or  any  other  person  severs  them  from  the  land,  the  interest 

junct.  ch.  9,  p.  159.  By  such  a  bill,  not  only  may  future  waste  be  prevented,  but,  as 
we  have  already  seen,  an  account  may  be  decreed,  and  compensation  given  for  past 
waste.  Ante,  §  515  to  518 ;  Eden  on  Injunct.  ch.  9,  p.  159,  160 ;  lb.  ch.  40,  p.  206  to 
219.  Besides,  an  action  on  the  case  will  not  lie  at  law  for  permissive  waste.  Gibson 
v.  Wells,  4  Bos.  &  Pull.  290  ;  Heme  v.  Bembow,  4  Taunt.  R.  764.  But  in  equity  an 
injunction  will  be  granted  to  restrain  permissive  waste,  as  well  as  voluntary  waste. 
Eden  on  Injunct.  ch.  9,  p.  159,  160;  Caldwall  v.  Baylis,  2  Meriv.  B.  408  j  1  Fonbl.  Eq. 
B.  1,  ch.  1,  §  5,  note  (p.)  [A  Court  of  Equity  will  not  interfere  to  make  a  tenant  for 
life  liable  for  permissive  waste.     Powys  v.  Blagrave,  27  Eng.  Law  &  Eq.  *Rep.  568.] 

"  The  interference  of  Courts  of  Equity  in  restraint  of  waste  was  originally  confined  to 
cases  founded  in  privity  of  title ;  and  for  the  plaintiff  to  state  a  case,  in  which  the  de- 
fendant pretended  that  the  plaintiff  was  not  entitled  to  the  estate,  or  in  which  the  defend- 
ant was  asserted  to  claim  under  an  adverse  right,  was  said  to  be,  for  the  plaintiff  to 
state  himself  out  of  Court.  But  at  present  the  Courts  have,  by  insensible  degrees, 
enlarged  the  jurisdiction  to  reach  cases  of  adverse  claims  and  rights,  not  founded  in 
privity  ;  as,  for  instance,  to  cases  of  trespass,  attended  with  irreparable  mischief,  which 
we  shall  have  occasion  hereafter  to  consider.  See  the  cases  fully  collected  by  Mr. 
Eden,  Eden  on  Injunct.  ch.  9,  p.  191  to  196,  ch.  10,  p.  206  to  214  ;  Livingston  v.  Liv- 
ingston, 6  John.  Ch.  B.  497  ;  Smith  v.  Collyer,  8  Ves.  90. 

"The  jurisdiction,  then,  of  Courts  of  Equity,  to  interpose,  by  way  of  injunction,  in 
cases  of  waste,  may  be  referred  to  the  broadest  principles  of  social  justice.  It  is 
exerted,  where  the  remedy  at  law  is  imperfect,  or  is  wholly  denied  ;  where  the  nature 
of  the  injury  is  such,  that  a  preventive  remedy  is  indispensable,  and  it  should  be  per- 
manent ;  where  matters  of  discovery  and  account  are  incidental  to  the  proper  relief — 
Watson  v. Hunter,  5  Johns.  Ch.  E.  170;  Jeremy  on  Equity  Jurisd.  B.  3,  ch.  2,  §  1,  p. 
327,  328 ;  Winship'  v.  Pitts,  3  Paige,  R.  259 — and,  where  equitable  rights  and  equitable 
injuries  call  for  redress,  to  prevent  a  malicious,  wanton,  and  capricious  abuse  of  their 
legal  rights  and  authorities  by  persons,  having  but  temporary  and  limited  interests  in 
the  subject-matter.  On  the  other  hand,  Courts  of  Equity  will  often  interfere  in  cases 
where  the  tenant  in  possession  is  impeachable  for  waste,  and  direct  timber  to  be  felled, 
which  is  fit  to  be  cut,  and  in  danger  of  running  into  decay,  and  thus  will  secure  the 
proceeds  for  the  benefit  of  those  who  are  entitled  to  it.  See  Eden  on  Injunct.  ch.  10, 
j).  218  to  221  ;  Burges  v.  Lamb,  16  Ves.  182 ;  Mildmay  v.  Mildmay,  4  Bro.  Ch.  R.  76  ; 
Dclapole  v.  Delapole,  17  Ves.  150;  Osborne  v.  Osborne,  19  Ves.  423;  Wickham  v. 
Wickham,  19  Ves.  419,  423;  Cooper,  R.  288."  See  also  Kane  v.  Vanderburgh,  1 
Johns.  Ch.  11  ;  Shubrick  v.  Guerard,  2  Desaus.  616  ;  Tessier  v.  Wyse,  3  Bland,  60; 
Winship  v.  Pitts,  3  Paige,  R.  259;  Watson  v.  Hunter,  5  Johns.  Ch.  169  ;  2  Robinson's 
Practice,  228 — 231.  [Threats  to  commit  waste  will  authorize  an  injunction.  Rodgers 
v.  Rodgers,  11  Barb.  Sup.  Ct.  595;  White  Water  Valley  Canal  Co.  v.  Comegys,  2 
Carter,  (Ind.)  469.] 

In  a  bill  to  stay  waste,  if  the  title  of  the  plaintiff  is  in  dispute,  the  Court  will  not 
ordinarily  grant  an  injunction.     Hough  v.  Martin,  2  Dev.  &Bat.  Eq.  E.  379;  Storm  v. 
Mann,  4  Johns.  Ch.  21  ;  Higgins  v.  Woodward,  1  Hopk.  Ch.  342.     [But  it  may  bo 
granted.    Green  v.  Keen,  4  Md.  98.] 
VOL.  I.  12 


134  Title  III.     Estate  for  Life.  Ch.  II.  s.  35—37. 

of  the  tenant  for  life  in  them  is  thereby  determined,  and  they  be- 
come the  property  of  the  owner  of  the  inheritance,  (a) 
123  *  *  36.  A  feoffment  was  made  to  the  use  of  A  for  life, 
remainder  to  the  use  of  his  first  and  other  sons  in  tail ; 
remainder  to  B  for  life,  remainder  to  his  first  and  other  sons  in 
tail.  B  had  issue  a  son,  and  after  A,  not  having  any  son,  cut 
down  timber.  It  was  resolved  that  the  son  of  B  might  have  an 
action  of  trover  against  A  for  the  timber,  because  the  property  of 
the  trees  was  in  him  who  had  the  inheritance  of  the  land  when 
they  were  cut ;  and  though  the  remainder  for  life  to  B  was  an 
impediment  to  an  action  of  waste  during  his  life,  yet  it  was  not 
any  impediment  to  his  son,  as  to  the  property  of  the  trees,  when 
severed  from  the  land,  which  B  could  not  have  for  the  debility 
of  his  estate.  And  the  possibility  of  the  estate  which  might 
come  to  the  son  of  A,  if  A  should  have  a  son,  was  not  any  im- 
pediment ;  inasmuch  as  it  was  a  mere  possibility,  which  perad- 
venture  never  would  happen,  and  was  nothing  in  law  till  it 
happened,  and  might  be  destroyed  by  the  feoffment  of  A.  (b) 

37.  One  seised  in  fee  of  lands  conveyed  them  to  trustees  and 
their  heirs,  to  the  use  of  A  for  life,  remainder  to  his  first  and 
other  sons  in  tail,  remainder  to  B  for  life,  remainder  to  his  first 
and  other  sons  in  tail,  remainder  to  his  two  sisters  and  the  heirs 
of  their  bodies,  remainder  to  the  grantor  in  fee.  A  and  B  had 
no  sons,  and  one  of  the  sisters  died  without  issue,  by  which  the 
heir  of  the  grantor,  as  to  one  moiety  of  the  premises,  had  the  first 
estate  of  inheritance.  A  having  cut  down  timber,  sold  it ;  the 
heir  of  the  grantor  brought  his  bill  for  an  account  of  a  moiety. 
It  was  objected  that  it  would  be  more  agreeable  to  the  rules  of 
equity  that  the  money  produced  by  the  sale  of  the  timber  should 
be  brought  into  court,  and  put  out  for  the  benefit  of  the  sons 
unborn,  and  which  might  be  born  ;  that  these  contingent  remain- 
ders being  in  gremio  leg-is,  and  under  the  protection  of  the 
law,  it  would  be  most  reasonable  that  the  money  should  be 
secured  for  the  use  of  the  sons,  when  there  should  be  any  born. 
But  as  soon  as  it  became  impossible  there  should  be  a  son,  then 
a  moiety  to  be  paid  to  the  plaintiff.     And  the  case  would  be 

(a)  Bowie's  case,  11  Rep.  79.  (Railroad  Company  v.  Kidd,  7  Dana,  R.  250  ;  Moores  v. 
Wait,  3  Wend.  104;  Bulkley  v.  Dolbeare,  7  Conn.  232;  Richardson  v.  York,  2  Skepl.  216; 
Berry  v.  Heard,  Cro.  Car.  242;  Palm.  327,  S.  C.) 

(6)  Uvedale  v.  Uvedale,  2  Roll.  Ab.  119. 


Title  III.     Estate  for  Life.     Ch.  II.  s.  37—41.        135 

the  same  if  there  were  a  son  in  ventre  matins,  or  the  plaintiff 
might  bring  trover ;  and  then  what  reason  had  he  to  come  into 
equity.  Lord  Macclesfield  said,  the  right  of  this  timber  belonged 
to  those  who,  at  the  time  of  its  being  severed  from  the  free- 
hold, were  entitled  to  the  first  estate  of  inheritance,  *  and  *  124 
the  property  became  vested  in  them.  As  to  the  objection 
that  trover  would  lie  at  law,  it  might  be  very  necessary  for  the 
party  who  had  the  inheritance  to  bring  his  bill ;  because  it 
might  be  impossible  for  him  to  discover  the  value  of  the  timber, 
it  being  in  the  possession,  and  cut  down  by  the  tenant  for  life. 
The  cause  was  reheard  by  Lord  King,  who  was  of  the  same 
opinion,  (a) 

38.  It  is  the  same  where  timber  is  severed  from  the  land  by 
accident.  Thus  where  a  great  quantity  of  timber  was  blown 
down  by  a  storm  at  Welbeck,  the  seat  of  the  Duke  of  New- 
castle ;  though  there  were  several  tenants  for  life,  with  remainder 
to  their  first  and  other  sons  in  tail,  yet  these  having  no  sons 
born,  the  timber  was  decreed  to  belong  to  the  first  remainder- 
man in  tail,  (b) 

39.  Where  there  are  trustees  to  preserve  contingent  remain- 
ders, the  Court  of  Chancery  will  not  allow  of  Waste,  by  collu- 
sion, between  the  tenant  for  life  and  the  person  entitled  to  the 
first  vested  estate  of  inheritance,  to  the  prejudice  of  persons  not 
in  esse,  (c) 

40.  Where  the  tenant  for  life  has  also  the  next  existing  estate  of 
inheritance,  subject  to  intermediate  contingent  remainders  in  tail, 
the  Court  of  Chancery  will  not  allow  him  to  take  advantage  of 
that  circumstance,  by  cutting  down  timber,  but  will  preserve  it 
for  the  benefit  of  the  intermediate  contingent  remainder-men. 

41.  The  Duke  of  Bolton  was  tenant  for  life,  with  remainder 
to  his  first  and  other  sons  in  tail,  remainder  to  Mrs.  Orde  for  life, 
remainder  to  her  first  and  other  sons  in  tail,  with  estates  to 
trustees  to  preserve  the  contingent  remainders,  remainder  to  the 
duke  in  fee.  The  duke  had  no  son,  but  Mrs.  Orde  had  a  son 
born,  who  died  soon  after.  The  duke  cut  down  timber.  Mrs. 
Orde  had  afterwards  another  son,  who  is  a  defendant  in  the 
cause.     On  the  question  to  whom  this  timber  should  belong, 

(a)  Whitfield  v.  Bevvit,  2  P.  Wms.  240.  1  Bro.  C.  C.  194;  3  Bro.  C.  C.  37.  Pigot  v.  Bul- 
lock, infra. 

(b)  Newcastle  v.  Vane,  2  P.  Wms.  241.     .  (c)  Garth  v.  Cotton,  tit.  16.  c.  7. 


136         Title  III.     Estate  for  Life.     Ch.  II.  s.  41—43. 

Lord  Thurlow  was  of  opinion,  that  as  it  was  not  competent  for 
the  duke  to  cut  down  timber  in  respect  of  his  life-estate,  he 
should  not  take  advantage  of  his  own  wrong.  That  the  timber, 
although  by  severance  it  became  personalty,  was  yet  bound  as 
far  as  it  could  be,  to  the  uses  of  the  realty.  That  the  adminis- 
trator of  Mrs.  Orde's  first  son  was  certainly  not  entitled,  the  child 

being  dead  at  the  time  of  the  timber  cut.  Neither  could 
125  *    her  second  son  *  claim  it ;  for  although  he  had  a  vested 

estate  of  inheritance,  yet  such  estate  was  liable  to  be 
divested  by  the  duke's  having  a  son.  He,  therefore,  thought 
nobody  was  then  entitled  to  it ;  but  directed  the  duke  to  pay 
into  court  the  money  for  which  the  timber  had  been  sold,  and 
the  interest  thereof.  In  pursuance  of  the  above  direction,  the 
Duke  of  Bolton  paid  in  the  money  arising  from  the  timber. 
Upon  his  death  in  1794,  Mr.  Orde,  the  husband  of  Mrs.  Orde,  as 
administrator  of  his  eldest  son,  presented  a  petition  to  have  the 
money  paid  to  him  ;  the  Court  directed  a  bill  to  be  filed.  The 
defendants  were,  the  second  son,  who  was  tenant  in  tail  in  re- 
mainder of  the  estates,  and  the  Duchess  of  Bolton,  executrix  of 
the  late  duke.  Lord  Loughborough  said,  when  the  timber  was 
cut,  no  doubt,  at  law,  the  duke  would  have  taken,  being  the 
first  owner  of  the  inheritance.  But  the  Court  very  properly  held, 
that  he  should  not,  by  a  fraud  on  the  settlement,  which  made  him 
tenant  for  life,  gain  that  advantage  to  himself  in  his  reversion  in 
fee ;  considering  it  as  a  wrong  upon  the  settlement.  The  conse- 
quence was,  that  part  of  the  property,  which,  by  the  fraud,  was 
taken  from  the  settlement,  ought  to  be  restored  to  it ;  that  would 
carry  it  to  all  the  uses.  Mrs.  Orde  would  be  entitled  to  an 
estate  for  life,  the  children  to  estates  in  tail  male  ;  and  he  could 
not  help  the  consequence  of  the  reversion  in  fee  going  to  the 
duke,  (a) 

42.  The  Court  of  Chancery  has,  in  some  cases,  directed  the 
timber  growing  on  an  estate,  whereof  a  person  was  tenant  for 
life,  to  be  cut  doivn,  for  the  purpose  of  paying  debts  and  legacies, 
charged  upon  the  inheritance. 

43.  A  person  devised  his  estate  to  his  wife  for  life,  remainder 
to  A  B  and  his  heirs,  upon  condition  that  he  should  pay  several 

(a)  Williams  v.  Duke  of  Bolton,  cited  3  P.  Wins.  268.  Powlett  V.  Duchess  of  Bolton, 
3  Ves.  jun.  374.     1  Cos,  Rep.  72.    Dare  v.  Hopkins,  2  Cox,  K.  110. 


Title  III.     Estate  for  Life.     Ch.  II.  s.  43—45.  137 

legacies  at  the  times  appointed  in  his  will ;  if  he  did  not  pay 
them  accordingly,  the  estate  to  go  over.  A  B  filed  his  bill  in 
the  Court  of  Chancery,  stating  that  there  was  a  great  quantity 
of  timber  on  the  estate,  which  belonged  to  him ;  that  he  was 
willing  it  should  be  sold,  and  the  legacies  paid ;  but  that  the 
widow,  who  had  barely  an  estate  for  life,  and  could  make  no 
profit  thereof  herself,  in  combination  with  the  other  remainder- 
man, designing  to  make  the  plaintiff  forfeit  his  estate,  by  non- 
payment of  the  legacies,  had  refused  him  permission  to 
fell  the  *  timber ;  though  he  offered  satisfaction  for  any  *  126 
damages  she  should  thereby  sustain.  He,  therefore,  prayed 
that  he  might  have  liberty  to  cut  down  and  carry  off  the  timber, 
and  sell  it  for  payment  of  the  legacies.  The  Court  thought  it 
reasonable  that  the  plaintiff  should  have  liberty  to  cut  down  and 
take  off  the  timber  ;  making  satisfaction  to  the  widow  for  break- 
ing the  ground,  &c. ;  and  referred  it  to  the  Master  to  see  what 
quantity  of  timber  was  necessary  to  be  felled  for  payment  of  the 
legacies,  and  what  might  be  conveniently  spared,  (a) 

44.  The  Court  of  Chancery  has  also  directed  timber,  in  a  state 
of  decay,  to  be  cut  down  for  the  benefit  of  the  person  entitled 
to  the  inheritance  ;  provided  no  damage  were  done  to  the  tenant 
for  life. 

45.  Sir  G.  Ireland,  by  deed,  granted  a  term  for  five  hundred 
years  to  the  defendant  and  others,  of  his  estates  in  Lancashire, 
to  commence  after  his  decease,  for  payment  of  debts  and  annui- 
ties ;  and  by  will  devised  the  reversion  and  inheritance  thereof 
to  the  plaintiff  for  life,  without  impeachment  of  waste,  remainder 
to  his  first  and  other  sons  in  tail.  The  testator  being  dead,  and 
the  trustees  in  possession  under  the  trust,  which  was  like  to  have 
a  long  continuance ;  the  plaintiff  brought  his  bill,  setting  forth 
that  he  was  reduced  to  great  want ;  that  there  was  much  decay- 
ing timber  on  the  estate,  which  the  trustees  had  no  power  to  cut 
down  ;  and  prayed  he  might  be  permitted  to  take  off  the  timber, 
allowing  for  what  damage  he  did  the  estate.  Although  it  was 
objected  that  the  plaintiff  might  die  before  the  trust  was  per- 
formed, and  till  then  could  not  be  let  into  possession  ;  therefore 
to  decree  that  he,  in  the  mean  time,  might  take  off  the  timber, 

(a)  Claxton  r.  Claxton,  2  Vera.  152. 

12* 


138  Title  III.     Estate  for  Life.   Ch.  II.  s.  45—47. 

would  be  a  prejudice  to  his  sons  ;  yet  the  Court  decreed  a  com- 
mission to  go,  to  take  off  timber  for  the  plaintiff's  relief  and  sup- 
port, not  exceeding  .£500.  (a) 

46.  A  was  tenant  for  life,  remainder,  as  to  one  moiety,  to  B 
in  tail,  and  as  to  the  other  moiety  to  an  infant.  There  was 
timber  upon  the  premises  greatly  decaying,  whereupon  B,  the 
remainder-man,  brought  a  bill,  praying  that  the  timber,  which 
was  decaying,  might  be  cut  down,  and  that  B  and  the  infant 
might  have  the  money.     The  tenant  for  life  insisted  on  having 

a  share  of  the  money.  Lord  Talbot  said,  —  1.  The  timber 
127*     while  standing  was  part  of  *  the  inheritance;  but  when 

severed,  either  by  the  act  of  God,  as  by  tempest,  or  by  a 
trespasser,  belonged  to  him  who  had  the  first  estate  of  inheri- 
tance in  fee  or  in  tail,  who  might  bring  trover  for  it.  2.  The 
tenant  for  life  ought  not  to  have  any  share  of  the  money  arising 
from  the  sale  of  the  timber ;  but  since  he  had  a  right  to  what 
might  be  sufficient  for  repairs  and  botes,  care  must  be  taken  to 
leave  enough  upon  the  estate  for  that  purpose ;  and  whatever 
damage  was  done  to  the  tenant  for  life  on  the  premises,  ought  to 
be  made  good  to  him.  3.  With  regard  to  the  timber  plainly 
decaying,  it  was  for  the  benefit  of  the  persons  entitled  to  the 
inheritance  that  it  should  be  cut  down,  otherwise  it  was  of  no 
value ;  but  this  should  be  done  with  the  approbation  of  the 
Master ;  and  trees,  though  decaying,  if  for  the  defence  and 
shelter  of  the  house,  or  for  ornament,  should  not  be  cut  down. 
B  to  have  one  moiety  of  the  money,  and  the  other  moiety  to  go 
to  the  infant,  (b) 

47.  It  has  been  usual,  from  very  ancient  times,  where  estates 
for  life  ase  expressly  limited,  to  insert  a  clause  that  the  tenant 
for  life  shall  have  the  lands,  "  without  impeachment  of  waste;" 
which  words  were  originally  held  to  exempt  the  tenant  for  life 
from  the  penalties  of  the  statute  of  Marlbridge  only ;  not  to  give 
the  property  of  the  thing  wasted.  But  it  is  laid  down  by  Lord 
Coke  that  the  words  absque  impetitione  vasti,  that  is,  without 
challenge  or  impeachment  of  waste,  enable  the  tenant  for  life  to 
cut  down  timber,  and  convert  it  to  his  own  use.     Otherwise,  if 

(a)  Aspinw.all  v.  Leigh,  2  Vern.  218. 
(b)  Bewick  v.  Whitfield,  3  P.  Wms.  267.     Vide  Lee  v.  Alston,  1  Bro.  C.  C.  195. 


Title  III.     Estate  for  Life.     Ch.  II.  s.  47—51.        139 

the  words  were  "without  impeachment  of  any  action  of  waste;" 
for  then  the  discharge  would  extend  to  the  action  only,  and  not 
to  the  property  of  the  timber,  (a) 

48.  To  the  words,  "  without  impeachment  of  waste,"  are 
sometimes  added,  with  full  liberty  to  commit  waste.  And  in 
some  instances,  words  of  restriction  are  inserted,  as  voluntary 
waste  in  houses  only  excepted.  In  the  case  of  Garth  v.  Cotton, 
which  will  be  stated  hereafter,  the  words  were,  "  without  im- 
peachment of  waste,  except  voluntary  waste."  And  Lord  Hard- 
wicke  held  that  there  the  tenant  was  punishable  for  wilful  waste  ; 
and  had  no  interest  in  the  timber,  otherwise  than  the  mast  and 
shade  and  necessary  botes.  But  some  eminent  lawyers  have 
lately  held  that  the  words  voluntary  waste  only  extend  to  houses, 
and  not  to  timber  trees,  (b) 

49.  It  has  been  lately  held  that  the  words,  without  im- 
peachment *  of  waste,  other  than  wilful  waste,  only  gave     *  128 
to  the  tenant  for  life  the  interest  of  the  money  produced 

by  the  sale  of  decaying  timber,  cut  by  order  of  the  Court,  (c) 

50.  It  has  been  long  fully  settled  that  the  words,  without  im- 
peachment of  waste,  give  to  the  tenant  for  life  the  right  to  fell 
timber,  and  also  the  property  of  all  timber  trees  felled,  f  or  blown 
down;  and  also  of  all  timber,  parcel  of  a  building  blown  down,  (d) 

51.  (Accordingly,  where  timber  is  cut  by  order  of  Court,  or  by 
the  prudent  agreement  of  all  parties  in  interest,  during  the  life 
of  the  tenant  for  life,  impeachable  of  waste,  and  the  estate  is 
next  limited  to  a  tenant  for  life  unimpeachable  of  waste ;  the 
former  will  be  entitled  to  the  interest  of  the  proceeds  during  his 
life ;  but  upon  his  decease,  the  entire  proceeds  will  belong  to  the 
latter,  and  not  to  the  remainder-man.)  l  It  has,  however,  been 
held,  in  a  modern  case,  that  a  tenant  for  life,  without  impeach- 

(«)  1  Inst.  22.  a.  11  P.ep.  82.  b.  (6)  1  Ves.  265.     Tit.  16.  c.  7. 

(c)  Wickham  v.  Wickham,  19  Ves.  419. 

(d)  Anon.  Mos.  R.  238.     Pyne  v.  Don,  1  Term  B.  55.     Smythe  v.  S ,  2  Swanst.  251. 


[t  The  tenant  for  life  is  not  entitled  to  the  timber  until  actually  felled  ;  he  cannot 
convey  it  to  another,  nor  does  an  authority  by  him  given  to  another  to  cut  down  tim- 
ber convey  any  interest,  and  if  not  executed  in  his  lifetime,  is  revoked  by  the  death  of 
the  party  giving  it.  Cholmeley  v.  Paxton,  3  Bing.  207.  See  also  Wolf  v.  Hill,  2  Swan. 
153,  note  a.] 

Waldo  v.  Waldo,  12  Sim.  107  ;  Phillips  v.  Barlow,  14  Sim.  263. 


140  Title  III.     Estate  for  Life.    Ch.  II.  s.  51—57. 

ment  of  waste,  cannot  maintain  trover  for  timber  cut  during  the 
existence  of  a  prior  estate  ;  but  that  it  vests  immediately  in  the 
owner  of  the  inheritence.  (a) 

52.  Where  a  tenant  for  life,  without  impeachment  of  waste, 
makes  a  lease  for  years,  and  the  lessee  commits  waste,  no  action 
of  waste  will  lie  against  him.  For  the  lease  is  derived  out  of  an 
estate  privileged ;  and  if  waste  lay,  it  must  be  against  the  tenant 
for  life,  who  made  the  lease ;  and  he  was  dispunishable,  (b) 

53.  The  power  which  a  tenant  for  life  without  impeachment 
of  waste  has  over  his  estate,  with  respect  to  cutting  down  timber, 
must  be  exercised  during  his  life ;  and  cannot  be  delegated  to' 
any  other  person,  so  as  to  enable  such  person  to  execute  it  after 
his  death,  (c) 

54.  Lord  Hardwicke  has  said,  that  where  there  is  tenant  for 
life  restrained  from  waste,  remainder  to  another  for  life,  without 
impeachment  for  waste ;  the  Court  of  Chancery  will  not  suffer 
any  agreement  between  the  two  tenants  for  life  to  commit  waste 
to  take  place  prior  to  the  period  at  which  the  second  tenant  for 
life's  power  properly  commences,  (d) 

55.  A  tenant  for  life,  without  impeachment  of  waste,  is  not- 
withstanding obliged  to  keep  tenants'  houses  in  repair,  unless 
the  charge  is  excessive ;  and  shall  not  suffer  them  to  run  to 
ruin,  (e) 

56.  The  clause,  without  impeachment  of  waste,  is,  however, 
so  far  restrained  in  equity,  that  it  does  not  enable  a  tenant  for  life 

to  commit  malicious  waste,  so  as  to  destroy  the  estate  ; 
129  *     which  is  *  called  equitable  waste ;  for   in  that   case  the 

Court  of  Chancery  will  not  only  stop  him  by  injunction, 
but  will  also  order  him  to  repair,  if  possible,  the  damage  he  has 
done. 

57.  Lord  Barnard,  on  the  marriage  of  his  son,  settled  Raby 
Castle  on  him  for  life,  without  impeachment  of  waste,  remainder 
to  his  son  for  life,  &c.  Afterwards,  Lord  B.,  having  taken  some 
dislike  to  his  son,  got  two  hundred  workmen  together,  and 
stripped  the  castle  of  the  iron,  lead,  doors,  &c,  to  the  value  of 
£3,000.  The  Court  of  Chancery  immediately  granted  an  injunc- 
tion to  stay  committing  of  waste,  in  pulling  down  the   castle ; 

(a)  Pigot  v.  Bullock,  1  Ves.  Jun.  479.  (&)  Bray  v.  Tracy,  W.  Jones,  51. 

(c)  Tit.  2.  c.  1.  s.  32.  (d)  (Robinson  v.  Litton,)  3  Atk!  210,  756. 

(e)  (Parteriche  v.  Powlet,  2  Atk.  383.) 


Title  III.     Estate  for  Life.     Ch.  II.  s.  57—63.         141 

and,  upon  the  hearing  of  the  cause,  decreed  not  only  the  injunc- 
tion to  continue,  but  that  the  castle  should  be  restored  to  its 
former  condition,  (a) 

58.  The  Court  of  Chancery  will  also  restrain  a  tenant  for  life, 
without  impeachment  of  waste,  from  cutting  down  timber,  serv- 
ing for  shelter  or  ornament  to  a  mansion-house  ;  as  also  timber 
not  to  be  felled. 

59.  A  bill  was  brought  by  a  remainder-man  to  restrain  a 
tenant  for  life,  without  impeachment  of  waste,  from  cutting 
down  timber  which  served  as  ornament  or  shelter  to  the  man- 
sion-house, or  which  was  unfit  to  be  felled.  Lord  Hardwicke 
granted  an  injunction  to  restrain  the  defendant  from  cutting  down 
trees  standing  in  lines,  avenues,  or  ridings  in  the  park,  (b) 

60.  An  injunction  was  moved  for  to  restrain  Mr.  Bowes,  the 
husband  of  Lady  Strathmore,  who  was  tenant  for  life,  without 
impeachment  of  waste,  from  cutting  trees  in  the  rides  or  avenues 
to  the  house,  or  that  served  for  shade  or  ornament,  or  were  unfit 
to  be  cut  as  timber.  Lord  Kenyon  (M.  R.)  granted  the  injunc- 
tion, saying  it  ought  to  include  every  thing  useful  or  ornamental 
to  the  house ;  and  said  he  thought  himself  bound  to  grant  it  as 
to  the  ornamental  trees,  though  they  should  not  be  planted  trees, 
but  growing  naturally ;  also  to  extend  it  to  young  saplings,  and 
trees  not  fit  to  cut  as  timber,  (c) 

61.  The  Court  of  Chancery  will  not,  however,  in  cases  of  this 
kind,  give  any  satisfaction  to  the  remainder-man  for  timber 
actually  cut  down,  (d) 

62.  The  Court  of  Chancery  will  not  permit  a  tenant  for  life, 
without  impeachment  of  waste,  to  commit  double  waste. 

63.  Lord  Archer,  being  tenant  for  life,  without  impeach- 
ment *  of  waste,  of  an  estate  which  was  decreed  to  be  *130 
sold,  and  the  money  invested  in  the  purchase  of  another 
estate,  to  be  settled  to  the  same  uses,  cut  down  timber.  Lord 
Thurlow  held  that  Lord  Archer's  personal  representatives  were 
bound  to  account  for  the  timber  cut ;  for  as  Lord  A.  was  to  be 
tenant  for  life,  without  impeachment  of  waste,  of  the  estate  to  be 

(«)  Vmic  v.  Lord  Barnard,  2  Vern.  738.     Rolt  v.  Somerville,  2  Ab.  Eq.  759. 
{!>)  Packington  v.  Packington,  3  Atk.  215.  Aston  v.  Aston,  1  Ves.  264.  O'Brien  v.  O'Brien, 
Amb.  107. 

(c)  Strathmore  v.  Bowes,  2  Bro.  C.  C.  88.     Downshire  v.  Sandys,  G  Ves.  10S.     Tarn  worth 
v.  Ferrers,  Id.  419.     Day  v.  Merry,  10  Ves.  375.     Coffin  v.  Ciffin,  Mad.  &  Geld.  17. 

(d)  Rolt  v.  Somerville,  2  Ab.  Eq.  759. 


142         Title  III.     Estate  for  Life.     Ch.  II.  s.  63—68. 

purchased,  if  he  might  commit  waste  upon  the  other  estate,  be- 
fore it  was  sold,  he  would  have  the  benefit  of  double  waste,  (a) 

64.  The  privileges  given  to  a  tenant  for  life,  by  the  words, 
without  impeachment  of  waste,  are  annexed  to  the  privity  of 
estate,  and  determine  with  it.  Thus  it  is  said  that  if  a  lease  be 
made  to  one  for  the  term  of  another's  life,  without  impeachment 
of  waste,  the  remainder  to  him  for  his  own  life,  he  becomes  pun- 
ishable for  waste  ;  for  the  first  estate  is  gone  and  drowned,  (b) 

65.  Some  cases  have  arisen  where  estates  for  life  have  been 
given,  with  partial  powers  of  committing'  waste  ;  and  the  Court 
of  Chancery  has  interposed  to  restrain  the  tenants  from  exceed- 
ing such  powers. 

66.  Lands  were  devised  to  a  person  for  life,  with  power  to  cut 
down  such  trees  as  four  persons,  named  in  the  will,  should  allow 
of,  or  direct  by  writing.  All  these  persons  being  dead,  it  was 
decreed  that  power  of  cutting  down  timber,  remained  ;  but  the 
Court  would  preserve  the  check.  It  was  referred  to  the  Master 
to  see  what  trees  were  fit  to  be  cut  down,  (c) 

67.  Mr.  Dummer  devised  his  estate  at  C.  to  his  wife  for  life. 
In  a  codicil,  he  said :  "  Whereas,  by  my  will,  my  wife  cannot  cut 
any  timber,  now  my  will  and  mind  is,  that  she  may,  during  so 
long  time  as  she  continues  my  widow,  cut  timber,  for  her  own 
use  and  benefit,  at  seasonable  times  in  the  year."  Mrs.  Dummer 
began  to  fell  timber;  the  person  in  reversion  applied  for  an  in- 
junction. Lord  Thurlow  utterly  rejected  the  idea  that  Mrs. 
Dummer  was  only  to  cut  timber  for  her  own  use,  or  for  estovers  ; 
and  thought  her  entitled  to  cut,  not  only  such  timber  as  would 
suffer  by  standing,  but  every  thing  which  could  fairly  be  called 
timber ;  although  she  could  not  cut  such  sticks  as  would  only 
make  paling,  or  saplings  not  proper  to  be  cut  as  timber.  (jT) 

68.  Bishops,  rectors,  parsons,  vicars,  and  other  ecclesiastical 
persons,  being  considered  in  most  respects  as  tenants  for  life  of 

the  lands  which  they  hold  jure  ecclesia?,  are  disabled  from 
131*      Committing  any  kind  of  waste ;  and  if  they  cut  down 

trees,  unless  for  reparations,  they  are  punishable  in  the 
ecclesiastical  courts,  and  also  by  writ  of  prohibition,  (e) ' 

(a)  Plymouth  v.  Archer,  1  Bro.  C.  C.  159.     Burges  v.  Lamb,  16  Ves.  174. 

(b)  11  Bep.  83.  b.  (c)  Hewit  v.  Hewit,  Amb.  508.    2  Eden's  B.  332. 

(d)  Chamberline  v.  Dummer,  1  Bro.  C.  C.  166.  3—549.        (e)  Vin.  Abr.  tit.  Dilapidation. 

1  In  the  United  States  the  remedy  is  by  bill  in  chancery,  or  by  action  at  law.     In 


Title  III.     Estate  for  Life.     Ch.  II.  s.  69—72.        143 

69.  By  the  Statute  35  Edw.  I.  it  is  declared,  that  persons  shall 
not  presume  to  fell  trees  growing  in  the  churchyard,  but  when 
the  chancel  or  the  body  of  the  church  requires  reparations.  And 
Lord  Coke  has  cited  a  case  where,  upon  complaint  to  the  king  in 
parliament,  that  the  Bishop  of  Durham  had  committed  waste  by 
destroying  timber,  a  prohibition  had  issued  against  him.  In 
another  case,  he  is  reported  to  have  said,  that  if  a  bishop  cut 
down  and  sold  trees,  and  did  not  employ  them  for  reparation, 
and  any  one  would  move  it,  he  would  grant  a  prohibition  out  of 
the  King's  Bench,  (a) 

70.  The  authority  of  this  dictum  has  been  doubted  in  a 
modern  case,  in  which  the  Court  of  Common  Pleas  held  that  it 
had  no  power  to  issue  an  original  writ  of  prohibition,  to  restrain 
a  bishop  from  committing  waste,  in  the  possessions  of  his  see,  at 
least  at  the  suit  of  an  uninterested  person ;  and  doubted  whether 
even  the  Court  of  King's  Bench  had  such  a  power,  (b) 

71.  It  appears,  however,  that  the  Court  of  Chancery  has  long 
exercised  this  kind  of  jurisdiction  ;  for  there  is  a  case  stated  in  2 
Roll.  Ab.  813,  in  which  Lord  Keeper  Coventry  granted  a  prohibi- 
tion, at  the  suit  of  a  patron,  against  a  prebendary,  for  having 
wasted  the  trees  of  his  prebend ;  and  this  doctrine  is  now  fully 
established,  (c) 

72.  The  patron  of  a  living  moved  for  an  injunction  against  the 
rector  to  stay  waste,  in  cutting  down  timber  in  the  churchyard. 
Lord  Hardwicke  said,  that  a  rector  might  cut  down  timber  for 
the  repairs  of  the  parsonage-house,  or  the  chancel,  but  not  for 
any  common  purpose ;  and  this  he  might  be  justified  in  doing 
under  the  Statute  35  Edw.  I.  Stat.  2  ;  that  by  the  custom  of  the 
country  he  might  cut  down  underwood  for  any  purpose  ;  but  if 
he  grubbed  it  up,  it  was  waste.  He  might  cut  down  timber, 
likewise,  for  repairing  any  old  pews  that  belonged  to  the  rec- 
tory; and  was  also  entitled  to  botes  for  repairing  barns  and 
outhouses  belonging  to  the  parsonage.  The  injunction  was 
granted,  (d) 

(a)  11  Rep.  49,  a.    Stockman  v.  Whither,  Roll.  Rep.  86. 

(£»)  Jefferson  v.  Ep.  Durham,  1  Bos.  &  Pul.  105. 

(c)  Ackland  v.  Atwell.    2  Roll.  Abr.  813.  (d)  Strachy  v.  Francis,  2  Atk.  217. 

Marylaiid,  if  a  rector  commits  waste  on  the  glebe  or  other  lands  of  the  parish,  he  is 
liable  to  pay  treble  damages,  at  the  suit  of  the  vestry.  1  LL.  Maryl.  p.  362,  Dor- 
sey's  cd. 


144         Title  III.     Estate  for  Life.     Ch.  II.  s.  73—75. 

73.  A  bill  was  brought  by  a  patron  against  a  rector  to  stay- 
waste  in  digging  stones,  &c,  on  the  glebe,  other  than  what  was 

necessary  for  repairing  and  improving  the  rectory ;  and 
132  *     for  an  *  account  of  what  had  been  dug  and  sold.     The 

defendant  demurred  as  to  the  account ;  as  also  to  the  stay- 
ing the  digging  of  stones,  other  than  for  repairs  and  improve- 
ments ;  and  by  way  of  answer,  set  out  that  the  quarries  were 
opened  before.  The  Court  said,  the  parson  had  a  fee  simple 
qualified,  under  restrictions,  in  right  of  the  church;  but  he  could 
not  do  every  thing  that  a  private  owner  of  an  inheritance  could ; 
he  could  not  commit  waste ;  nor  open  mines,  but  might  work 
those  already  opened.  Even  a  bishop  could  not.  Talbot,  Bishop 
of  Durham,  applied  to  Parliament  to  enable  him  to  open  mines  ; 
but  it  was  rejected.  Parsons  may  fell  timber,  or  dig  stones  to 
repair ;  they  have  also  been  indulged  in  selling  such  timber  or 
stone,  where  the  money  has  been  applied  in  repairs.  Injunctions 
have  been  granted  even  against  bishops,  to  restrain  them  from 
felling  large  quantities  of  timber,  at  the  instance  of  the  Attorney- 
General,  on  behalf  of  the  crown,  the  patron  of  bishoprics.  If  the 
demurrer  had  only  gone  to  an  account,  it  had  been  good  ;  for  the 
patron  cannot  have  any  profit  from  the  living ;  but  it  was  too 
general,  and  must  be  overruled,  (a) 

74.  In  a  modern  case,  Lord  Thurlow  granted  an  injunction  to 
stay  waste,  against  the  widow  of  a  rector,  during  the  vacancy,  at 
the  suit  of  the  patroness,  (b) 

75.  It  has  been  resolved  [in  4  Will,  and  Mary]  that  an  action 
on  the  case  for  dilapidations  might  be  sued  against  a  late  incum- 
bent who  had  resigned  a  benefice,  or  against  the  personal  repre- 
sentatives of  a  deceased  rector  or  vicar,  by  the  successor.  And 
in  a  modern  case  it  was  held  that  an  action  for  dilapidations  also 
lay  for  the  neglect  of  repairing  a  prebendal  house,  by  a  succeed- 
ing prebendary,  against  his  predecessor,  or  his  personal  represen- 
tative, (c)  f 

(a)  Knight  v.  Moseley,  Amb.  176.     Rutland's  case,  1  Lev.  107.  contra. 

(b)  Hoskins  v.  Featherstone,  2  Bro.  C.  C.  552. 

(c)  Jones  v.  Hill,  Garth.  224.  3  Lev.  268.     Radcliffe  v.  D'Oyly,  2  Term  Rep.  630. 

t  By  the  statute  56  Geo.  3,  c.  52,  the  incumbents  of  any  benefice,  with  the  consent  of 
the  patron  and  the  bishop,  are  enabled  to  pay  the  moneys  to  arise  by  sale  of  any  timber 
cut  from  the  glebe  lands  of  such  benefice,  either  for  equality  of  exchange,  or  for  the 
price  of  any  house  or  lands  purchased  by  them,  under  the  authority  of  a  statute  which 
will  be  stated  hereafter.     Tit.  32,  c.  2. 


Title  III.     Estate  for  Life.     Ch.  II.  s.  76.  145 

•  76.  At  common  law  tenants  (lessees)  for  life  were  not  answer- 
able for  damages  done  by  fire,  whether  it  arose  from  accident  or 
ne^licrence.1     When  the  statute  of  Gloucester  rendered  tenants 


1  By  the  common  law,  every  housekeeper  is  bound  to  keep  his  fire  with  due,  that  is, 
reasonable  care.  The  degree  of  this  care  is  measured  by  the  degree  of  danger  and  the 
extent  of  the  consequences  naturally  resulting  from  the  want  of  it.  The  remedy  in 
such  cases  is  by  an  action  on  the  case  ;  in  which  the  plaintiff,  in  the  language  of  the  old 
entries,  declared  that  by  the  custom  of  the  realm,  quilibet  ignem  suum,  die  et  node,  salvo 
et  secure  custodire  teneatur,  tie  pro  defectu  debitce  custodies  damnum  aliquod  vicinis  suis 
eveniat  utlo  modo  ;  and  alleged  that  the  defendant  ignem  suum  tarn  negligenter  et  improvide 
apud  se  custodivit,  $-c,  that  the  plaintiff's  property  was  burnt.  Rastell's  Entr.  p.  8; 
Beaulieu  v.  Flinglan,  2  H.  4,  24;  Turberville  v.  Stamp,  1  Com.  R.  32;  Skin.  681  ; 
1  Salk.  13.  The  consequences  of  negligence  in  such  cases  are  the  same  as  in  all  others, 
namely,  that  the  party  is  held  responsible  for  all  its  natural  and  probable  results  ;  for 
these  results  every  man  is  presumed  to  foresee  and  calculate  upon.  Clark  v.  Foot, 
8  Johns.  431.  If  the  fire  was  caused  by  the  negligence  of  his  servant,  or  guest,  the 
master  of  the  house  has  always  been  held  liable  in  this  action.  2  H.  4.24;  1  Bl. 
Comm.  431. 

It  seems  to  have  been  held,  that  a  householder  is  responsible  for  damage  caused  by 
his  fire,  even  though  by  misfortune,  and  without  negligence  ;  on  the  ground  of  public 
policy,  as  in  the  case  of  a  common  carrier:  Filliter  v.  Phippard,  12  Jur.  202,  204  ;  and 
for  this  opinion  the  Year  Books,  2  H.  4,  IS,  24,  and  42,  Ass.  pi.  9,  are  usually  cited. 
But  the  former  was  a  mere  obiter  dictum  of  Thyrning,  in  these  words, — "  Thyrning 
said,  that  a  man  shall  respond  for  his  fire,  which  by  misfortune  burns  another's  goods ;  " 
the  action  being  case  for  negligence,  upon  the  custom  of  the  realm,  and  the  remark  en- 
tirely uncalled  for,  if  it  meant  any  thing  more  than  that  the  action  would  lie  for  goods 
unintentionally  but  negligently  burnt,  which  was  the  case  there,  as  well  as  for  the  burn- 
ing of  a  house.  See  Bro.  Abr.  Action  sur  le  case,  pi.  30.  The  case  in  42  Ass.  9,  is  a 
short  note,  in  these  words,—"  A  man  sued  a  bill  against  another  of  burning  his  house, 
vi  et  armis,  who  pleaded  not  guilty.  And  it  was  found  by  verdict  of  the  inquest,  that 
the  fire  broke  out  suddenly  in  the  house  of  the  defendant,  he  knowing  nothing  (thereof,) 
and  burnt  his  goods  and  also  the  house  of  the  plaintiff.  Upon  which  verdict  it  was  ad- 
judged (agard)  that  the  plaintiff  take  nothing  by  his  writ ;  but  he  was  amerced,  &c." 
From  the  case,  thus  shortly  reported,  it  may  be  inferred,  either  that  the  Court  held  that 
no  action  whatever  would  lie,  there  being  no  negligence  on  the  part  of  the  defendant ; 
or,  that  trespass  vi  et  armis  was  not  the  proper  remedy ;  but  it  shows  nothing  more. 

In  regard  to  the  liability  of  tenants  for  life  or  years,  in  an  action  of  waste,  for  the 
destruction  of  the  house  by  accidental  fire,  without  their  default,  it  seems  conceded  that 
by  the  common  law  they  were  not  liable,  but  that  they  were  made  so  by  force  of  the 
statutes  of  Marlbridge,  52  II.  3,  c.  23,  and  of  Gloucester,  6  Ed.  1,  c.  5.  The  material 
part  of  this  latter  statute  is  in  these  words  :  —  "It  is  provided  also,  that  a  man  from 
henceforth  shall  have  a  writ  of  waste  in  the  Chancery,  against  him  that  holdeth  by  law 
of  England  or  othenvise  for  term  of  life,  or  for  the  term  of  years,  or  a  woman  in  dower 
And  he  which  shall  be  attainted  of  waste  shall  leese  the  thing  that  he  hath  wasted,  and 
moreover  shall  recompense  thrice  so  much  as  the  waste  shall  be  taxed  at."  As  this 
statute  contained  no  exception  of  cases  of  inevitable  accident,  it  was  held  to  include 
such  cases  in  the  tenant's  liability.  The  authority  usually  cited  for  this  is  that  of  Lord 
Coke,  who  says, — "burning  of  the  house  by  negligence  or  mischance  is  waste."  Co. 
VOL.  I.  13 


146         Title  III.     Estate  for  Life.     Ch.  II.  s.  76—78. 

for  life  answerable  for  waste,  without  any  exception,  it 
133  *    rendered  *  them  responsible  for  all  damages  done  by  fire. 

But  now,  by  the  Statute  6  Ann.  c.  31,  s.  6,  it  is  enacted, 
"  That  no  action,  suit,  or  process  whatsoever,  shall  be  had,  main- 
tained, or  prosecuted  against  any  person  in  whose  house  or  cham- 
ber any  fire  shall  accidentally  begin,  or  any  recompense  be  made 
by  such  person  for  any  damage  suffered  or  occasioned  thereby ; 
any  law,  usage,  or  custom  to  the  contrary  notwithstanding."  By 
the  7th  section  of  this  statute  it  is  provided,  that  nothing  in  this 
act  shall  defeat  any  contract  or  agreement  made  between  landlord 
and  tenant. 

77.  In  consequence  of  this  last  clause  it  has  been  determined, 
that  where  a  tenant  for  life,  under  a  settlement,  covenanted  to 
keep  a  house  in  good  and  sufficient  repair,  and  the  house  was 
burnt  down  by  accident,  he  was  bound  to  rebuild  it.  («) 

78.  It  is  now  become  usual,  where  the  intention  of  the  par- 
ties is,  that  the  tenant  shall  not  be  liable  to  rebuild  in  case  of 
accidental  fire,  to  except  it  in  the  covenant  to  repair.  (6) 

(a)  Chesterfield  v.  Bolton,  2  Com.  R.  626.     (Phillips  v.  Stevens,  16  Mass.  238.     Redding 
v.  Hall,  1  Bibb.  R.  536,  539.    Pasteur  v.  Jones,  Cam.  &  Nor.  194,  201.) 
(6)  (Bullock  v.  Dommitt,)  6  Term  Rep.  651. 

Lit.  53,  b.  Rolle  repeats  it  in  the  same  words,  in  2  Roll.  Abr.  820,  1.  42.  But  it  is 
worthy  of  notice  that  Chief  Baron  Comyns,  in  stating  this  doctrine,  evidently  grounds 
it  upon  some  negligence  of  the  tenant;  his  language  being, — "If  he  suffers  the  house  to 
be  burned  by  neglect  or  mischance."  6  Com.  Dig.  520  ;  Wast.  D.  2,  citing  Co.  Lit.  & 
2  Roll,  as  above.  In  England,  however,  cases  of  inevitable  accident  were  specially 
provided  for,  by  the  Stat.  6  Ann.  c.  31,  §  6  ;  which  has  been  reiinacted  in  the  States  of 
New  Jersey  (Elmer's  Dig.  p.  593,  §  8,)  and  Delaware,  (Rev.  St.  1829,  p.  167,  §  26.) 
How  far  the  statute  of  Gloucester  has  been  adopted  or  reenacted  in  the  United  States 
has  been  stated  in  a  previous  note.  But  it  may  here  be  added,  that  no  case  is  known 
in  which  any  American  Court  has  construed  it  to  render  tenants  liable  for  damage  by 
inevitable  accident,  as  for  permissive  waste ;  nor  is  any  action,  whether  of  waste  or  of 
trespass  on  the  case,  known  to  have  been  brought  for  such  damage  ;  and  the  better 
opinion  is,  that  no  such  action  could  here  be  maintained.  See  4  Kent,  Coram.  82  ; 
Co.  Lit.  57,  a.  note  377,  by  Hargrave  ;  3  Bl.  Comm.  229  note  (7)  by  Christian  :  Gibbon 
on  Dilapidations,  &c.  p.  51,  53,  54.     [See  Davis  v.  Alden,  2  Gray,  309.] 

[A  testator  devised  to  A.  for  life,  a  house  and  other  real  estate,  "  he  committing  no 
manner  of  waste,  and  keeping  the  premises  in  good  and  tenantable  repair."  In  1837 
A  entered  into  possession,  and  in  1844  the  house  was  totally  destroyed  by  an  accidental 
fire.  A  was  found  lunatic  by  inquisition  in  1845,  and  the  lunacy  was  dated  from  1843. 
Upon  petition  in  lunacy  of  the  remainder-men,  who  were  also  committees  of  the  person 
and  estate,  it  was  held,  that  the  lunatic's  estate  was  liable  under  the  terms  of  the  con- 
dition to  reinstate  the  house.     In  re  Skingley,  3  Eng.  Law  and  Eq.  Rep.  91.] 


147 


TITLE   IV. 

ESTATE   TAIL   AFTER   POSSIBILITY   OF  ISSUE   EXTINCT. 
BOOKS    OF   REFERENCE   UNDER   THIS    TITLE. 

Littleton's  Tenures,  §  32 — 34. 
Coke  upon  Littleton,  27 — 29. 
Blackstone's  Commentaries,  Book  II.  eh.  8. 
Flintoff  on  Real  Property.     Vol.  II.  Book  I.  ch.  3. 


Sect.  1.  How  it  arises. 

8.  It  lias  some    Qualities   of  an 

Estate  Tail. 

9.  But  it  is  in  Fact  only  an  Es- 

tate for  Life. 


Sect.  10.  This  Tenant  has  the  Property 
of  the  Timber. 

12.  But  is  restrained  from  Ma- 
licious Waste. 

16.  His  Privileges  not  grantable 
over. 


Section  1.  We  now  come  to  treat  of  those  estates  for  life 
which  are  derived  from  the  operation  of  some  principle  of  law. 
Of  these  the  first  is  called  an  estate  tail  after  possibility  of  issue 
extinct ;  which  is  thus  described  by  Littleton :  "  Where  tene- 
ments are  given  to  a  man  and  to  his  wife  in  especial  tail,  if  one 
of  them  die  without  issue,  the  survivor  is  tenant  in  tail  after  pos- 
sibility of  issue  extinct,  (a) 

2.  "  So  if  they  have  issue,  and  the  one  die,  albeit  that  during 
the  life  of  the  issue,  the  survivor  shall  not  be  said  tenant  in  tail 
after  possibility  of  issue  extinct ;  yet  if  the  issue  die  without 
issue,  so  as  there  be  not  any  issue  alive  which  may  inherit  by 
force  of  the  entail,  then  the  surviving  party  is  tenant  in  tail,  after 
possibility  of  issue  extinct."  (b) 

3.  "  Also  if  tenements  be  given  to  a  man  and  to  his  heirs 
which  he  shall  beget  on  the  body  of  his  wife ;  in  this  case  the 
wife  hath  nothing  in  the  tenements,  and  the  husband  is  seised  as 
donee  in  special  tail ;  and  in  this  case,  if  the  wife  die  without 
issue  of  her  body,  begotten  by  her  husband,  then  the  husband  is 
tenant  in  tail  after  possibility  of  issue  extinct,  (c) 

(«)  Lit.   s.  32.  (b)  Idem.  (c)  Id.  s.  33. 


148       Title  IV.     Estate  Tail  after  Possibility,  Sfc.  s.  4—8. 

4.  "  And  note,  that  none  can  be  tenant  in  tail  after  possibility 
of  issue  extinct,  but  one  of  the  donees,  or  the  donee  in  especial 
tail.  For  the  donee  in  general  tail  cannot  be  said  to  be  tenant 
in  tail  after  possibility  of  issue  extinct ;  because  always  during 

his  life  he  may  by  possibility  have  issue,  which  may  in- 
135*     herit  by  *  force  of  the  same  entail.    And  in  the  same  man- 
ner the  issue  which  is  heir  to  the  donees  in  especial  tail 
cannot  be  tenant  in  tail  after  possibility  of  issue  extinct,  for  the 
reason  abovesaid."  (a) 

5.  Nothing  but  a  moral  impossibility  of  having  issue  can  give 
rise  to  this  estate.  '  Thus,  if  a  person  gives  lands  to  a  man  and 
his  wife,  and  to  heirs  of  their  two  bodies,  and  they  live  to  a  hun- 
dred years  without  having  issue,  yet  they  are  tenants  in  tail ;  for 
the  law  sees  no  impossibility  of  their  having  issue,  (b) 

6.  The  impossibility  of  having  issue  must  proceed  from  the  act 
of  God,  and  not  from  the  act  of  the  parties.  For  if  lands  be 
given  to  a  man  and  his  wife,  and  to  the  heirs  of  their  two  bodies, 
and  after  they  are  divorced  causd  prcecontr  actus,  or  consanguini- 
tatis,  their  estate  of  inheritance  is  turned  to  a  joint  estate  for 
life ;  and  although  they  had  once  an  inheritance  in  them,  yet  for 
that  the  estate  is  altered  by  their  own  act,  and  not  by  the  act  of 
God,  viz.  by  the  death  of  either  party  without  issue,  they  are  not 
tenants  in  tail  after  possibility  of  issue  extinct,  (c) 

7.  A  person  may  be  tenant  in  tail,  after  possibility  of  issue 
extinct,  of  any  estate  in  remainder,  as  well  as  of  an  estate  in 
possession.  Thus  if  a  lease  be  made  to  A  for  life,  remainder  to 
B  and  his  wife,  in  special  tail ;  and  B  dies  without  issue,  his 
widow  will  immediately  become  tenant  in  tail  after  possibility 
of  issue  extinct,  (d) 

8.  This  estate,  though  strictly  speaking  not  more  than  an 
estate  for  life,  partakes  in  some  circumstances  of  an  estate  tail. 
For  a  tenant  in  tail  after  possibility  of  issue  extinct,  has  eight 
qualities  or  privileges  in  common  with  a  tenant  in  tail.  1.  He  is 
dispunishable  for  waste,  because  he  continues  in  by  virtue  of  the 
livery  upon  the  estate  tail ;  and  having  once  had  the  power  of 
committing  waste,  he  shall  not  be  deprived  of  it  by  the  act  of 
God.  2.  He  shall  not  be  compelled  to  attorn.  3.  He  shall  not 
have  aid  of  the  person  in  reversion,  because  he  having  originally 

(«)  Littleton,  s.  34.         (b)  1  Inst.  28.  a.  (c)  Idem.  (d)  Bowles's  case,  11  Eep.  81.  a. 


• 


Title  IV.     Estate  Tail  after  Possibility,  Sf-c.  s.  8—10.      149 

the  inheritance  by  the  first  gift,  has  likewise  the  custody  of  the 
writings,  which  are  necessary  to  defend  it.  4.  Upon  his  alien- 
ation no  writ  of  entry  in  consimili  casu  lies.  5.  After  his  death 
no  writ  of  intrusion  lies.  6.  He  may  join  the  mise  in  a  writ  of 
right,f  m  a  special  manner.  7.  In  a  prcecipe  brought  by 
*  him,  he  shall  not  name  himself  tenant  for  life.  8.  In  a  *  136 
prcecipe  brought  against  him,  he  shall  not  be  named  barely 
tenant  for  life,  (a) 

9.  There  are,  however,  four  qualities  annexed  to  this  estate, 
which  prove  it  to  be,  in  fact,  only  an  estate  for  life.  1.  If  this 
tenant  makes  a  feoffment  in  fee,  it  is  a  forfeiture ;  because  having 
no  longer  a  descendible  estate  in  him,  he  cannot  transfer  such  an 
estate  to  another,  without  the  prejudice  and  disherison  of  the 
person  in  remainder.  2.  If  an  estate  in  tail  or  in  fee  in  the  same- 
lands  descends  upon  him,  the  estate  tail  after  possibility  of  issue 
extinct  is  merged.%  3.  If  he  is  impleaded,  and  makes  default, 
the  person  in  reversion  shall  be  received,  as  upon  default  of  any 
other  tenant  for  life.  4.  An  exchange  between  this  tenant  and  a 
bare  tenant  for  life  is  good ;  for,  with  respect  to  duration,  their 
estates  are  equal.  (If) 

10.  It  is  said  in  Herlakenden's  case,  that  if  a  tenant  in  tail, 
after  possibility  of  issue  extinct,  fells  the  trees,  the  lessor  shall 
have  them ;  for  inasmuch  as  he  has  but  a  particular  estate  for 
life  in  the  land,  he  cannot  have  an  absolute  interest  in  the  trees ; 
but  he  shall  not  be  punished  in  waste,  because  his  original  estate 
was  not  within  the  statute  of  Gloucester.  This  is  denied  by 
Lord  Coke,  who  is  reported  to  have  said,  that  at  common  law 
this  tenant  had  a  fee,  and  consequently  full  power  to  fell  and  dis- 
pose of  the  trees ;  and  notwithstanding  the  statute  De  Bonis  had 

{a)  1  Inst.  27.  b.     2  Inst.  302.     1  Roll.  R.  184.     11  Rep.  80.  a. 
(A)  1  Inst.  27.  b.     11  Rep.  80.  b. 

[t  These  writs  are  abolished  after  the  first  day  of  June,  1835,  by  Stat.  3  &  4  Will. 
c.  27,  s.  36,  37.] 

[  J  It  has  been  doubted  whether  any  merger  will  take  place  between  an  estate  tail 
after  possibility  of  issue  extinct,  and  an  estate  for  life,  because  the  former,  though 
equal  in  quantity,  is  greater  in  quality  than  the  latter.  Bowles  v.  Bertie,  Boll.  Rep. 
178;  Lewis  Bowles's  case,  11  Co.  81;  but  the  more  prevailing  opinion  seems  to  be 
that  for  all  the  purposes  of  merger,  this  estate  is  to  be  considered  as  a  mere  estate  for 
life,  and  susceptible  of  merger  as  such.  2  Preston's  Conveyancing,  3d  ed.  222 ;  Co. 
Lit.  41  b.,  42  a. ;  Bro.  Abr.  Estate,  25.] 

13* 


150      Title  IV.     Estate  Tail  after  Possibility,  8fc.  s.  10—15. 

made  the  estate  to  be  only  for  life,  yet  the  privilege  and  liberty 
was  not  taken  away,  (a) 

11.  In  Lewis  Bowles's  case,  the  Court  observed  that  tenants 
in  special  tail,  at  the  common  law,  had  a  limited  fee  simple; 
and  when  their  estate  was  changed  by  the  statute  De  Donis,  yet 
there  was  not  any  change  of  their  interest  in  doing  of  waste  ;  so 
when,  by  the  death  of  one  donee  without  issue,  the  estate  is 
changed,  yet  the  power  to  commit  waste,  and  to  convert  it  to  his 
own  use,  was  not  altered  nor  changed,  for  the  inheritance  was 

once  in  him.  And  in  a  modern  case  Lord  Eldon  held, 
137  *     upon  *  the  authority  of  the  preceding  cases,  that  tenant  in 

tail  after  possibility,  being  dispunishable  for  waste  by  law, 
has  equally  with  tenant  for  life,  without  impeachment  of  waste, 
an  interest  and  property  in  the  timber,  (b) 

12.  The  Court  of  Chancery,  by  analogy  to  the  rule  adopted 
in  the  case  of  a  tenant  for  life,  without  impeachment  of  waste, 
will  restrain  persons  seised  of  estates  tail  after  possibility  of 
issue  extinct  from  pulling  down  houses,  cutting  down  trees 
planted  for  shelter  or  ornament,  or  any  other  kind  of  malicious 
waste,  (c) 

13.  A  woman  being  tenant  in  tail  after  possibility  of  issue  ex- 
tinct, and  having  married  again,  her  second  husband  felled  some 
trees  in  a  grove  that  grew  near,  and  was  an  ornament  to,  the 
mansion-house.  Having  an  intent  to  fell  the  rest,  the  person  in 
remainder  preferred  his  bill  to  restrain  her  from  felling  those 
trees.  The  Court  discovered  a  strong  inclination  to  grant  the 
injunction  ;  but  the  case  was  referred,  (d) 

14.  A  woman,  tenant  in  tail  after  possibility  of  issue  extinct, 
was  restrained  from  committing  waste,  in  pulling  down  houses, 
or  felling  trees,  which  stood  in  defence  of  the  house ;  and  also 
fruit  trees  in  the  garden.  But  for  some  turrets  of  trees  which 
stood  a  land's  length  or  two  from  the  house,  the  Court  would 
grant  no  injunction,  because  she  had  by  law  power  to  commit 
waste ;  and  yet  she  was  restrained  in  the  particulars  aforesaid, 
because  that  seemed  malicious,  (e) 

15.  On  a  motion  for  an  injunction  to  stay  a  jointress,  tenant 

(a)  4  Rep.  63.  a.     1  Roll.  Rep.  184. 

(b)  11  Rep.  81.  a.    Williams  v.  Williams,  15  Ves.  419.     12  East.  209.     3  Mad.  519. 

(c)  2  Ch.  Ca.  32.  (d)  Abraham  v.  Bubb,  2  Freem.  53.    2  Show.  68. 
(e)  Anon.  2  Freem.  278. 


Title  IV.     Estate  Tail  after  Possibility,  Sfc.  s.  15 — 17.      151 

in  tail  after  possibility  of  issue  extinct,  from  committing  waste, 
it  was  urged  that  she  being  a  jointress  within  the  Statute  11 
Hen.  VII.  ought,  in  equity,  to  be  restrained  from  cutting  timber, 
that  being  part  of  the  inheritance,  which  by  the  statute  she  was 
restrained  from  alienating.  The  Court  granted  an  injunction 
against  wilful  waste  in  the  site  of  the  house,  and  pulling  down 
houses,  (a) 

16.  The  privileges  which  this  tenant  enjoys  arise  from  the 
privity  of  estate,  and  because  the  inheritance  was  once  in  him ; 
therefore  if  he  grants  over  his  estate  to  another,  his  grantee  will 
be  bare  tenant  for  life,  (b) 

17.  Thus  where  a  tenant  of  this  kind  granted  over  his  estate, 
the  grantee  was  compelled  to  attorn  as  a  bare  tenant  for  life ; 
and  so  to  be  named  in  a  quid  juris  clamat.     For  although 

it  were  *  true  that  a  tenant  of  this  kind  was  not  compel-     *  138 
lable  to  attorn,  yet  that  was  a  privilege  annexed  to  his 
person,  not  to  the  estate ;  but  by  the  assignment,  the  privity  was 
altered,  and  the  privilege  gone,  (c)  f 

(a)  Cook  v.  Whaley,  1  Ab.  Eq.  400.         (b)  1  Inst.  28.  a.        (c)  Apreece's  case,  3  Leon.  241. 

[t  The  powers  of  disposition  given  by  the  statute  3  &  4  Will.  4,  c.  74,  for  aboflshing 
fines  and  recoveries,  do  not  extend  to  tenants  in  tail,  after  possibility  of  issue  extinct, 
who  are  expressly  exempted  from  the  operation  of  the  act  by  section  18.] 


152 


TITLE  V. 

CURTESY. 
BOOKS    OF    REFERENCE    UNDER    THIS    TITLE. 

Littleton's  Tenures,  §  35. 

Coke  upon  Littleton,  29 — 30. 

Bisset  on  Estates  for  Life,  ch.  3. 

Roper  on  the  Law  of  Property  arising  from  the  relation  between  Husband  and 

Wife,  ch.  1. 
Blackstone's  Commentaries.    Book  II.  ch.  8. 
Kent's  Commentaries.    Lect.  55. 
Chambers  on  Estates  and  Tenures,  p.  85 — 95. 
Flintoff  on  Real  Property.     Vol.  II.  Book  I,  ch.  3. 

CHAP.  I. 

ORIGIN    OF  ESTATES   BY   THE   CURTESY,  AND    CIRCUMSTANCES   REQUIRED 
TO    THEIR   EXISTENCE. 

CHAP.  II. 

OF    WHAT    THINGS    A    MAN    MAY    BE    TENANT    BY    THE    CURTESY,    AND 
THE   NATURE    OF   THIS   ESTATE. 


CHAP.  I. 


ORIGIN    OF  ESTATES   BY   THE   CURTESY,  AND    CIRCUMSTANCES   REQUIRED 
TO   THEIR   EXISTENCE. 


Sect.     I.   Origin  of  Curtesy. 

4.  Circumstances  required. 

5.  I.  Marriage. 
G.  II.  Seisin. 

15.  III.  Issue. 

16.  Who  must  be  born  alive. 

17.  In  the  Lifetime  of  the  Wife. 


Sect.  19.  And  be  capable  of  inheriting 
the  Estate. 

24.  IV.  Death  of  the  Wife. 

25.  Curtesy  in  Gavel-kind. 

26.  Who  may  be  Tenants  by  the 

Curtesy. 


Section  1.  The  second  estate  for  life,  derived  from  the  com- 
mon law,  is  that  which  a  husband  acquires  in  his  wife's  lands  by- 
having  issue  by  her ;  which  is  called  an  estate  by  the  curtesy  of 


Title  V.     Curtesy.     Ch.  I.  s.  1—3.  153 

England.1     For  before  issue  had,  the  husband  has  only  an  estate 
during  the  joint  lives  of  himself  and  his  wife,  (a) 

2.  The  law  that  a  husband,  who  had  issue,  should  retain  the 
lands  of  his  deceased  wife  during  his  life,  prevailed  among 

all  *  the  northern  nations.  And  when  the  customs  of  the  *  140 
Normans  were  reduced  into  writing,  this  law  was  inserted 
among  them,  and  is  thus  expressed  in  the  Latin  translation  of 
the  Grand  Coustomier,  c.  121.  Consuetude  enim  in  Norman- 
nid,  ex  antiquitate  approbata,  quod  si  quis  uxor  em  habuerit  ex  qud 
hceredem  aliquem  procreaverit,  quern  natum  vivum  fuisse  consti- 
terit,  sive  vivat,  sive  decesserit,  totum  feodum  quod  maritus  possi- 
debat,  ex  parte  uxoris  suce  tempore  quo  decesserit,  ipsi  marito, 
quamdiu  ab  aliis  cessabit  nuptiis  remanebit.  It  is  said  in 
Home's  Mirror,  to  have  been  established  in  England  by  King 
Henry  I.,  which  is  extremely  probable,  as  there  is  a  full  account 
of  it  in  the  Treatise  that  bears  the  name  of  Glanville,  written 
in  the  reign  of  King  Henry  II.  (b) 

3.  An  estate  by  the  curtesy  of  England  is  thus  described  by 
Littleton,  s.  35. — "Where  a  man  taketh  a  wife  seised  in  fee 
simple,  or  in  fee  tail  general,  or  seised  as  heir  in  special  tail,  and 
hath  issue  by  the-  same  wife,  male  or  female,  born  alive  ;  albeit 
the  issue  after  dieth  or  liveth,  yet  if  the  wife  dies,  the  husband 
shall  hold  the  land  during  his  life,  by  the  law  of  England."  And 
Sir  J.  Jekyl  has  observed,  that  the  husband's  tenancy  by  the 
curtesy  has  no  moral  foundation  ;  and  is  therefore  properly  called 
a  tenancy  by  the  curtesy  of  England,  that  is,  an  estate  by  the 
favor  of  the  law  of  England,  (c)  2 

(«)  1  Inst.  351.  a. 

(b)  Lindebrog,  LL.  Alleman.  tit.  92.  (Jura  et  Consuetudines,  Norman,  fol.  21.)  Mirror, 
C.  1.  s.  3.     Glanv.  Lib.  7.  c.  18.     Bract.  437.  b. 

(c)  2.  P.  Wms.  703. 


1  This  estate  falls  properly  under  the  head  of  title  by  descent,  as  it  accrues  by  the 
mere  operation  of  law,  upon  the  death  of  the  wife.  See  4  Kent,  Comm.  373,  note  a ; 
1  Inst.  18,  b.  note  106  ;  Post,  tit.  6,  ch.  2,  §  17,  note;  Tit.  29,  ch.  1,  §  22,  note. 

2  Chancellor  Kent  observes  that  "  This  estate  is  not  peculiar  to  the  English  law,  as 
Littleton  erroneously  supposes,  for  it  is  to  be  found,  with  some  modifications,  in  the 
ancient  laws  of  Scotland,  Ireland,  Normandy,  and  Germany.  Sir  Martin  Wright  is 
of  opinion,  that  curtesy  was  not  of  feudal  origin,  for  it  is  laid  down  expressly  in  the 
Book  of  Feuds,  that  the  husband  did  not  succeed  to  the  feud  of  the  wife,  without  a 
special  investiture;  and  he  adopts  the  opinion  of  C.raig,  who  says,  that  curtesy  was 
granted  out  of  respect  to  the  former  marriage,  and  to  save  the  husband  from  falling 
into  poverty  ;  and  he  deduces  curtesy  from  one  of  the  rescripts  of  the  Emperor  Con- 


154  Title  V.     Curtesy.     Ch.  I.  s.  4—6. 

4.  Littleton's  description  of  this  estate  points  out  four  circum- 
stances as  absolutely  required  to  the  existence  of  this  estate ; 
namely,  I.  Marriage.  II.  Seisin  of  the  wife.  III.  Issue.  IV. 
Death  of  the  wife. 

5.  With  respect  to  the  marriage,  it  must  be  between  persons 
capable  of  contracting  together,  and  duly  solemnized.  It  should, 
however,  be  observed,  that  although  where  a  marriage  is  void, 
the  man  does  not  acquire  a  title  to  curtesy  ;  yet  if  it  be  only  void- 
able, and  is  not  annulled  during  the  life  of  the  wife,  the  husband 
will  be  tenant  by  the  curtesy  ;  for  a  marriage  cannot  be  avoided 
by  the  ecclesiastical  courts,  after  the  death  of  either  of  the  par- 
ties. With  respect  to  the  mode  of  proving  the  fact  of  marriage, 
it  will  be  stated  in  the  next  title,  (a) 

6.  As  to  the  seisin  of  the  wife,  or  of  the  husband  in  right  of 
her,  it  is  a  circumstance  absolutely -required  ;  and  with  respect  to' 
corporeal  hereditaments,  it  must  be  a  seisin  in   deed?     Thus 

(a)  2  Burn's  Eccl.  Law,  458. 

stantinc."  4  Kent,  Comm.  28;  Wright  on  Tenures,  194;  Craig,  Jus.  Feud.  lib.  2. 
Dieg.  22,  §  40. 

The  right  of  the  husband  as  tenant  by  the  curtesy,  is  expressly  given  by  statute 
substantially  in  the  language  of  Littleton,  in  the  States  of  Maine,  Massachusetts,  Ver- 
mont, Rhode  Island,  Delaware,  Michigan,  and  Indiana.  [For  a  construction  of  the  stat- 
ute of  Indiana,  see  Cunningham  v.  Doc,  1  Smith,  34.]  In  other  States,  as  New  York, 
Virginia,  Neiv  Jersey,  New  Hampshire,  Ohio,  Alabama,  Missouri,  Illinois,  Kentucky,  Ten- 
nessee, Maryland,  North  Carolina,  Mississippi,  and  Connecticut,  this  estate  has  been  inci- 
dentally recognized  as  an  existing  legal  estate,  either  in  statutes  or  judicial  decisions. 
In  South  Carolina,  the  husband  takes  in  fee  simple  the  same  share  in  the  wife's  estate, 
which  she  would,  on  surviving,  take  in  his ;  namely,  one  third ;  and  in  certain  cases, 
one  moiety,  and  in  one  case,  two  thirds.  1  Brev.  Dig.  422-424.  In  Georgia,  the  hus- 
band by  the  marriage  becomes  entitled  to  all  the  wife's  real  estate,  in  the  same  manner 
as  to  her  personal  property.  Prince's  Dig.  p.  225,  251.  In  Louisiana,  the  law  of  hus- 
band and  wife  is  based  upon  principles  irreconcilable  with  the  existence  of  a  tenancy 
by  the  curtesy. 

1  The  common  law  on  this  point  is  not  held  in  the  LTnited  States  with  the  same  de- 
gree of  strictness  as  in  England  ;  an  immediate  right  of  entry,  or  potential  or  con- 
structive seisin,  where  there  is  no  adverse  possession,  being  all  that  is  considered 
requisite  to  vest  the  title  of  the  husband.  See  4  Kent,  Comm.  29,  30  ;  Davis  r.  Mason, 
1  Pet.  S.  C  R.  507,  508;  Barr  v.  Galloway,  1  M'Lean,  476;  Jackson  v.  Selliek,  8 
Johns.  262  ;  Green  v.  Liter,  8  Cranch,  229,  249;  M'Corry  v.  King,  3  Humph.  Ten.  R. 
267  ;  Adair  v.  Lott,  3  Hill,  N.  Y.  R.  182.  But  see  Taylor  v.  Gould,  4  Law  Rep.  60, 
N.  S  ;  [S.  C.  10  Barb.  Sup.  Ct.  388  ;  Day  v.  Cochran,  24  Miss.  261 .]  A  recovery  alone, 
in  ejectment,  by  the  husband  and  wife,  has  been  held  sufficient  for  this  purpose.  Ells- 
worth v.  Cook,  8  Paige,  643.  In  Connecticut,  a  right  of  entry  by  the  wife  is  sufficient, 
by  force  of  the  statute  of  descents,  notwithstanding  any  adverse  seisin  or  possession. 


Title  V.     Curtesy.     Ch.  I.  s.  6—8.  155 

Lord  Coke  says,  if  a  man  dies  seised  of  lands  in  fee  simple,  or 
fee  tail  general,  and  they  descend  to  his  daughter,  who 
marries,  *  has  issue,  and  dies  before  entry,  the  husband  *  141 
shall  not  be  tenant  by  the  curtesy ;  yet  in  this  case  the 
husband  had  a  seisin  in  law.  But  if  she  or  her  husband  had 
entered  during  her  life,  he  would  have  been  tenant  by  the  cur- 
tesy, (a) 1 

7.  The  time  when  the  seisin  commences,  whether  before  or 
after  issue  had,  is  immaterial ;  for  if  a  man  marries  a  woman 
seised  in  fee,  is  disseised,  and  then  has  issue,  and  the  wife  dies, 
he  shall  enter  and  hold  by  the  curtesy.  So  if  he  has  issue  which 
dies  before  the  descent  of  the  lands  on  the  wife,  (b) 

8.  If  a  woman,  tenant  in  tail  general,  makes  a  feoffment  in 
fee,  and  takes  back  an  estate  in  fee,  and  marries,  has  issue,  and 
dies,  the  issue  may  in  a  formejdon  f  recover  the  land  against  his 
father  ;  because  he  is  to  recover  by  force  of  the  estate  tail,  as 
heir  to  his  mother,  and  is  not  inheritable  to  his  father,  (c) 

Mr.  Hargrave  has  observed  upon  this  passage,  that  the  husband 
could  not  have  curtesy  in  respect  of  the  fee,  because  that  was 
defeated  by  the  son's  recovery  in  the  formedon  ;  nor  in  respect  of 
the  tail,  because  the  wife's  feoffment,  before  the  marriage,  had 

(a)  1  Inst.  29.  a.     Tit.  1.     (6  T.  E.  679.     Doe  v.  Rivers,  7  T.  E.  276.) 

(0)  1  Inst.  30.  a.     (Jackson  v.  Johnson,  5  Cowen,  74.)  (c)  I  Inst.  29.  b.  n.  0. 

Hillhouse  v.  Chester,  3  Day,  166  ;  Bush  v.  Bradley,  4  Day,  298,  306  ;  Kline  v.  Bebee, 
6  Conn.  E.  494.  A  reversionary  interest  in  the  wife,  expectant  upon  an  estate  for  life, 
is  not  sufficient.  Stoddard  v.  Gibbs,  1  Sumn.  263  ;  Jackson  v.  Johnson,  5  Cow.  74  ; 
Lowry  v.  Steel,  4  Ohio  R.  170  ;  unless  the  estate  for  life  is  a  mere  equitable  interest ; 
Adair  v.  Lott,  3  Hill,  N.  Y.  R.  182.  And  on  the  other  hand,  a  mere  naked  seisin  by 
the  wife,  as  trustee,  is  not  sufficient,  even  though  she  is  beneficially  interested  in  tbe 
reversion.  Chew  v.  Comm'rs  of  Southwark,  5  Rawle,  R.  160.  [Stokes  v.  McKibbin, 
13  Penn.  State  R.  (1  Harris,)  267  ;  Riglcr  v.  Cloud,  14  lb.  361. 

A  husband  may  have  tenancy  by  the  curtesy  though  the  wife  be  never  seised  in  deed, 
either  actually  or  constructively  of  the  land ;  and  though  the  same  be  adversely  held 
during  coverture.  Borland  v.  Marshall,  2  Ohio,  (N.  S.)  308  ;  Mitchell  v.  Regan,  3  lb. 
377.  But  see  Dew  v.  Demarcst,  21  New  Jersey,  525.  In  Kentucky  the  actual  seisin  of 
the  wife  must  be  shown.     Orr  v.  Hollidays,  9  B.  Mon.  59  ;  Neely  v.  Butler,  10  lb.  48.] 

1  The  possession  by  one  tenant  in  common  has  been  held  sufficient  to  make  the  hus- 
band tenant  by  the  curtesy  of  his  wife's  part,  she  having  been  of  right  tenant  in  com- 
mon of  the  other  moiety  by  descent,  but  dying  before  actual  entry.  Sterling  v. 
Penlington,  7  Via.  Abr.  150,  pi.  11,  per  Lord  Hardwicke ;  14  Via.  Abr.  512,  pi,  5, 
S.  C  ;  2  Eq.  Ca.  Abr.  730,  S.  C.  The  possession  of  the  feme  mortgagor  in  fee  is  also 
sufficient  for  this  purpose.     Casborne  v.  Scarfc,  1  Atk.  603. 

[t  This  writ  abolished  after  the  1st  June,  1835,  by  Stat.  3  &  4  Will.  4,  c.  27,  s.  36,  37.] 


156  Title  V.     Curtesy.    Ch.  I.  s.  9—12. 

discontinued  it;   consequently  there    could  be  no   seisin   of  it 
during  the  marriage. 

9.  It  has  been  stated  that  the  possession  of  a  lessee  for  years 
is  the  possession  of  the  person  to  whom  the  inheritance  descends, 
before  entry  or  receipt  of  rent.  Therefore  if  lands,  which  are  let 
for  years,  descend  upon  a  married  woman,  who  lives  beyond  the 
day  on  which  the  rent  became  due,  without  receiving  it,  yet  her 
husband  will  be  entitled  to  curtesy,  (a) 

10.  An  estate  tail  descended  from  her  brother  to  Alice  Rich- 
ardson, who  was  married,  and  had  issue ;  the  lands  were  let  on 
leases  for  years,  and  the  rents  were  payable  at  Michaelmas  and 
Lady-day.  The  tenants  being  greatly  in  arrear,  Alice  did  not 
receive  any  of  the  Lady-day  rents,  but  died  four  months  after 
that  time  ;  nor  did  any  other  person  receive  rent  during  her  life. 
The  question  was,  whether  her  husband  was  entitled  to  be  tenant 
by  the  curtesy,  (b) 

Lord  Hardwicke  said,  if  Alice  had  died  before  Lady-day,  there 
could  not  have  been  a  doubt  of  the  husband's  right  to  curtesy, 
because  he  could  do  nothing  till  the  rent  became  due.     The  only 

objection  arose  from  the  neglect  of  the  husband  in  not 
142  *    distraining  *  for  the  rent  which  became  due  at  Lady-day. 

The  receipt  of  rent  would  have  amounted  to  an  actual 
seisin.  If  the  representatives  of  the  brother  had  received  any 
rent  during  the  life  of  the  wife,  it  would  have  been  a  material 
objection ;  but  no  part  of  the  rent  which  accrued  after  the  death 
of  the  brother  wTas  ever  received  by  the  wife,  or  by  any  other 
person  ;  so  that  the  possession  of  the  lessee  was  the  possession  of 
the  wife  ;  nor  could  there  be  any  other  without  making  the  hus- 
band a  trespasser.  Decreed  that  the  husband  was  entitled  to  be 
tenant  by  the  curtesy. 

11.  A  devise  to  executors  for  payment  of  debts  does  not  pre- 
vent the  descent  of  the  freehold  and  inheritance ;  from  whence 
it  follows  that,  in  a  case  of  this  kind,  there  will  be  curtesy. 

12.  A  person,  who  had  issue  a  daughter,  devised  his  lands  to 
his  executors  for  payment  of  his  debts,  and  until  his  debts  were 
paid.     The  executors  entered.     The  daughter  married,  had  issue, 

(«)  Tit.  1.  s.  26.    (Jackson  v.  Johnson,  5  Cowen,  74.    Lowey  v.  Steel,  4  Ohio  R.  170.) 
(b)  DeGrey  v.  Eichardson,  3  Atk.  469. 


Title  V.     Curtesy.    Ch.  I.  s.  12—16.  157 

and  died  ;  afterwards  the  debts  were  paid.     It  was  resolved  that 
the  husband  should  be  tenant  by  the  curtesy,  (a) 

13.  Where  the  wife's  estate  was  let  for  life  before  the  mar- 
riage, the  husband  cannot  acquire  a  seisin  thereof,  and  will  there- 
fore not  be  entitled  to  curtesy.  If  a  rent  be  reserved,  it  seems 
doubtful  whether  the  husband  will  be  entitled  to  have  curtesy  of 
it ;  in  a  similar  case,  Lord  Coke  was  of  opinion  that  a  wife 
should  have  dower,  (b) 

14.  With  respect  to  the  seisin  which  is  necessary  in  incorpo- 
real hereditaments,  to  give  a  title  to  curtesy,  (a  seisin  in  law,  or 
constructive  seisin  is  sufficient,  even  at  common  law,  as  the  hus- 
band could  not,  by  any  industry,  obtain  a  seisin  in  deed.  If  it 
be  a  rent,  created  by  means  of  a  conveyance  to  uses,  the  grantee 
immediately  acquires  a  seisin,  by  the  words  of  the  statute.)  (c) 

15.  The  third  circumstance  required  to  the  existence  of  an 
estate  by  the  curtesy  is  issue  ;  after  which  the  husband  was  for- 
merly allowed  to  do  homage  alone  and  was  called  tenant  by  the 
curtesy  initiate.1  Such  issue  must,  however,  have  the  following 
qualities  to  entitle  the  husband  to  curtesy.  1.  It  must  be  born 
alive.  2.  In  the  lifetime  of  the  mother.  3.  And  be  capable  of 
inheriting  the  estate,  (d) 

16.  By  the  old  law  it  was  deemed  necessary  that  the  child 
should  not  only  be  born  alive,  but  be  heard  to  cry ;  and  that 
circumstance  was  to  be  proved  by  persons  who  actually  heard  it, 
not  by  those  who  learned  it  by  hearsay.     Littleton,    however, 

(a)  Guavara's  case,  8  Rep.  96.  a.    Tit.  8.  c.  1.    (Robertson  v.  Stevens,  1  Ired.  Eq.  R.  247.) 

(b)  1  Inst.  29.  a.  32.  a.     (Stoddard  v.  Gibbs,  1  Sumn.  263.)     Tit.  6.  c.  3. 

(c)  (1  Inst.  29.  a.) 

(d)  (Mattocks  v.  Stearns,  9  Verm.  326.) 


1  Marriage,  seisin,  and  the  birth  of  living  issue,  do  not  alone  make  the  husband 
tenant  by  the  curtesy  ;  for  this  estate,  though  inchoate,  is  not  in  esse  until  the  death  of 
the  wife,  though  while  she  lives  he  may  be  tenant  of  the  freehold  in  her  right.  See 
Henderson  v.  Oldham,  5  Dana,  E.  254.  By  the  law  of  Pennsylvania,  the  husband, 
though  tenant  by  the  curtesy  initiate,  cannot,  during  the  life  of  the  wife,  either  sell,  lease, 
charge,  or  in  any  way  affect  the  land ;  it  being  secured  to  her,  as  her  sole  property, 
during  the  coverture.  His  title  as  tenant  of  the  freehold,  commences,  in  esse,  at  her  de- 
cease. Stat.  Apr.  11,  1848  ;  Dunl.  Dig.  p.  1124  ;  Gamble's  estate,  1  Scl.  Eq.  Cas.  489. 
[The  interest  of  a  tenant  by  the  curtesy  initiate  may  be  attached  and  sold  under  execution. 
Day  v.  Cochran,  24  Miss.  261.  The  tenant  by  curtesy  initiate  has  an  estate  for  life  in  the 
wife's  estate  of  inheritance,  in  his  own  right.  Foster  v.  Marshall,  2  Foster,  (N.  II.)  491.] 
VOL.  I.  14 


158  Title  V.     Curtesy.     Ch.  I.  s.  16—20. 

appears  to  have  doubted  whether  it  was  necessary  to  prove 
that  the  child  cried ;  and  Lord  Coke  deduces  an  argument 

143  *  from  the  *  form  of  pleading,  in  cases  of  this  land,  to  prove 
that  any  other  evidence  would  be  sufficient,  (a) ' 

17.  The  issue  must  be  born  in  the  lifetime  of  the  wife ;  so 
that  if  she  dies  in  childbed,  and  the  issue  is  taken  out  of  the 
womb  by  the  Caesarean  operation,  the  husband  will  not  be 
entitled  to  curtesy.  For  at  the  instant  of  the  mother's  death  he 
was  clearly  not  entitled,  as  having  had  no  issue  born  ;  but  the 
land  descended  to  the  child,  while  in  his  mother's  womb ;  and 
the  estate,  being  once  so  vested,  shall  not  be  taken  from  him  and 
his  heirs,  (b) 

18.  It  is  immaterial  whether  the  issue  be  born  before  or  after 
the  seisin  of  the  wife.  Thus  if,  after  issue  is  born,  lands  descend 
to  the  wife,  be  the  issue  dead  or  alive  at  the  time  of  the  descent, 
the  husband  shall  be  tenant  by  the  curtesy.  So  if,  after  the 
death  of  the  issue,  the  wife  acquires  land  in  fee,  and  dies  without 
having  had  any  other  issue,  her  husband  shall  be  tenant  by  the 
curtesy.  For  the  having  issue,  and  being  seised  during  the 
coverture,  is  sufficient,  though  it  be  at  several  times,  (c) 

19.  The  issue  must  be  such  as  is  capable  of  inheriting-  the 
estate  ;  therefore  if  lands  be  given  to  a  woman  and  the  heirs  male 
of  her  body,  who  has  issue  a  daughter  only,  her  husband  will 
not  be  tenant  by  the  curtesy,  (d) 

20.  If  a  woman  seised  in  fee  simple  marries,  has  issue,  and 
then  her  husband  dies,  and  she  takes  another  husband,  by  whom 
she  also  has  issue  ;  though  the  issue  by  the  first  husband  be 
living,  yet  the  second  husband  shall  be  tenant  by  the  curtesy ; 

(a)  Brae.  438.  a.     1  Inst.  29.  b.     8  Rep.  34.  b.     Dyer  25.  b. 

(b)  1  Inst.  29.  b.     3  Eep.  35.  a.     (Marsellis  v.  Thalhimer,  2  Paige,  35.) 

(c)  8  Rep.  35.  b.     13  Rep.  23.  (d)  1  Inst.  29.  b.     8  Rep.  35.  b. 


i  If  the  child  is  born  in  such  an  early  state  of  pregnancy  as  to  be  incapable  of  living, 
it  has  been  held  that  it  was  to  be  considered  as  if  it  had  never  been  born  or  conceived. 
It  has  also  been  held  that  children,  born  within  the  first  six  months  after  conception, 
are  to  be  presumed  incapable  of  living ;  and  therefore  cannot  take  and  transmit  prop- 
erty by  descent,  unless  they  actually  survive  long  enough  to  rebut  that  presumption. 
Marsellis  v.  Thalhimer,  2  Paige,  R.  35,  per  Walworth,  C.  In  Pennsylvania,  the  birth 
of  issue  is  no  longer  essential  to  the  husband's  title  as  tenant  by  the  curtesy.  Pennsylv. 
Eev.  St.  1846,  ch.  403,  p.  504.  Lancaster  Bank  v.  Stauffer,  10  Barr,  399  ;  Gamble's 
estate,  1  Sel.  Eq.  Cas.  489. 


Title  V.     Curtesy.     Oh.  I.  s.  20—27.  159 

because  his  issue  by  possibility  may  inherit,  if  the  first  issue  die 
without  issue,  (a) 

21.  If  the  wife  has  issue,  and  after  is  attainted  of  felony,  so 
as  the  issufc  cannot  inherit  to  her,  yet  the  husband  shall  be 
tenant  by  the  curtesy,  in  respect  of  the  issue  born  before  the 
felon v,  which  by  possibility  might  then  have  inherited.  But  if 
the  wife  had  been  attainted  of  felony  before  issue  had,  although 
she  had  issue  afterwards,  the  husband  would  not  be  tenant  by 
the  curtesy.  (&) 

[22.  In  the  recent  case  of  Barker  v.  Barker,  the  devise  was  to 
A  and  her  heirs  ;  but  if  she  died  leaving  issue,  then  to  such  issue 
and  their  heirs.  A  died  leaving  issue,  and  it  was  held  that  the 
husband  of  A  was  not  entitled  to  curtesy,  as  the  children 
*  took  by  purchase,  and  the  wife  had  not  such  an  estate  *  144 
as  could  descend  upon  them.]  (c) 

23.  It  is  a  rule  of  law  that  no  person  can  be  heir  to  an  ances- 
tor, unless  such  ancestor  died  seised  :  hence  probably  arose  the 
doctrine  which  requires  an  actual  seisin  in  the  wife ;  for,  without 
such  an  actual  seisin,  her  issue  would  not  be  capable  of  inherit- 
ing from  her.  (</) 

24.  The  fourth  and  last  circumstance  required  to  give  a  title 
to  curtesy  is  the  death  of  the  wife,  by  which  the  estate  of  the 
husband  becomes  consummate,  (e) 

25.  By  the  special  custom  of  gavelkind,  a  husband  who  sur- 
vives his  wife  is  entitled  to  a  moiety  of  her  lands,  lohether  he  has 
issue  or  not;  but  which  in  conformity  to  the  custom  of  Nor- 
mandy, is  forfeited  by  a  second  marriage.  Mr.  Robinson,  in  his 
Treatise  on  Gavelkind,  observes  that  this  was  formerly  called 
the  Man's  Free  Bench  ;  and  cites  a  record  of  21  Edw.  I.,  in 
which  this  custom  is  recognized.  (/) 

26.  As  to  the  persons  who  are  capable  of  acquiring  an  estate 
of  this  kind,  it  will  be  sufficient  to  observe,  that  all  those  who 
are  capable  of  taking  freehold  estates,  may  be  tenants  by  the 
curtesy. 

27.  An  alien  cannot,  however,  be  tenant  by  the  curtesy ;  for 
although  he  may  take  an  estate  by  purchase,  for  the  benefit  of 
the  crown,  yet  he  cannot  take  an  estate  by  act  of  la^r ;  for  the 
law  will  not  transfer  an  estate  to  a  person  who  cannot  keep  it, 

(a)  8  Rep.  34.  b.  (i)  1  Inst.  40.  a.  (c)  2  Sim.  249. 

(d)  Tit.  29.  c.  8.  (e)  1  Inst.  30.  a.  (f)  2  Rob.  Gav.  c.  1.     1  Inst.  30.  a.  note  (1.) 


160  Title  V.     Curtesy.     Ch.  I.  s.  27—28. 

but  must  immediately  give  title  to  another.  If  an  alien  be  made 
a  denizen,  and  afterwards  has  issue,  he  may  be  tenant  by  the 
curtesy,  in  respect  of  such  issue ;  though  he  would  not  be  en- 
titled on  account  of  issue  had  before,  (ay 

28.  Persons  attainted  of  treason  or  felony  cannot  be  tenants 
by  the  curtesy;  for,  being  extra  legem  positi,  they  are  become 
incapable  of  deriving  any  benefit  from  the  law ;  and  by  conse- 
quence, of  this  in  particular,  which  intended  to  give  the  inheri- 
tance only  to  those  who  were  capable  of  holding  it  during  their 
lives,  (b) 

(a)  Calvin's  case,  7  Rep.  25.  a.  (6)  Bro.  Ab.  Curtesy,  15. 


1  As  to  the  rights  of  aliens  to  hold  lands  in  the  United  States,  see  ante,  tit.  1 ,  §  39, 
note!  In  Pennsylvania,  though  an  alien  may  hold  lands  to  a  limited  extent,  yet  he 
acquires  no  title  as  tenant  by  the  curtesy  initiate.  Reese  v.  Waters,  4  Watts  &  Serg. 
145.  And  see  ace.  Mussey  v.  Pierre,  11  Shepl.  559.  In  Massachusetts,  the  common 
law  is  in  force ;  and  it  has  been  held,  that  though  an  alien  husband  takes,  in  his  wife's 
lifetime,  the  preliminary  steps  to  obtain  naturalization,  yet  unless  the  naturalization  is 
completed  before  her  death,  he  cannot  be  tenant  by  the  curtesy.  Foss  v.  Crisp,  20 
Pick.  121.     (See  Statutes  1852,  ch.  29.] 

[In  North  Carolina,  he  cannot  take  by  the  curtesy  such  an  interest  in  land  as  may  be 
sold  by  aji.fa.    Copeland  v.  Sands,  1  Jones,  Law,  70.J 


161 


CHAP.  II. 

OF   WHAT   THINGS   A   MAN   MAY   BE  TENANT   BY   THE   CURTESY,   AND 
NATURE   OF  THIS   ESTATE.  - 


Sect.    1.  Estates  in  Fee  Simple. 
4.  Estates  Tail. 

10.  Estates  in  Coparcenary. 

11.  Trust  Estates. 

13.  Money  to  be  laid  out  in  Land. 


Sect.  18.  Estates  not  of  Inheritance. 

22.  Estates  in  Joint-Tenancy. 

23.  Remainders  and  Reversions. 

25.  Lands  assigned  for  Dower. 

26.  Nature,  of  this  Estate. 

15.  Equities  of  Redemption.  31.  Forfeitable  for  Alienation. 

16.  Incorporeal  Hereditaments.  33.  But  not  for  Adultery. 

17.  What   Things  are  not   liable  34.  This    Tenant    is  punishable 

to  Curtesy.  for  Waste. 

Section  1.  It  appears  from  Glanville,  lib.  7,  c.  18,  that  the 
right  to  curtesy  was  originally  confined  to  the  maritagium  of 
the  wife.  But  when  Bracton  wrote,  this  right  was  extended  to 
all  the  lands  whereof  the  wife  was  seised,  whether  she  acquired 
them  by  inheritance,  or  as  a  maritagium,  or  by  donation.  And 
Littleton's  description  •  of  curtesy  extends  to  all  estates  in  fee 
simple,  (a) 

2.  If  a  woman,  tenant  in  tail  after  possibility  of  issue  extinct, 
takes  a  husband,  has  issue,  and  the  fee  simple  descends  upon  her, 
the  husband  will  be  entitled  to  curtesy ;  because,  by  the  descent 
of  the  fee,  the  estate  tail  after  possibility  was  merged ;  and  the 
wife  became  tenant  in  fee  simple  executed,  (b) 

3.  Where,  by  articles  previous  to  marriage,  a  woman  granted 
to  her  intended  husband,  during  their  joint  lives,  the  interest  of 
her  money,  and  the  rents  of  her  estate,  of  which  she  was  seised 
in  fee,  to  maintain  the  house,  &c. ;  Lord  Hardwicke  held  that 
this  was  not  intended  to  abridge  the  husband's  legal 
rights;  therefore  *that  he  was  entitled  to  be  tenant  by  *146 
the  curtesy  of  the  estate  whereof  his  wife  was  seised  at 

fa)  Bract.  437.  b.  8.  a.  (b)  Bro.  Ab.  Estate,  25. 

14* 


162  Title  V.     Curtesy.     Ch.  II.  s.  3—8. 

the  time  of  the  marriage,  as  well  as  to  an  estate  which  came  to 
her  after,  (a) 

4.  Before  the  statute  De  Donis,  conditional  fees  were  subject 
to  curtesy.  And  when  that  statute  converted  them  into  estates 
tail,  husbands  were  allowed  to  be  tenants  by  the  curtesy  of  them 
also. 

5.  Where  lands  were  given,  before  the  statute  De  Donis,  to  a 
man  and  a  woman,  and  the  heirs  of  their  bodies  to  be  begotten, 
the  course  of  descent  was,  in  some  degree,  changed  by  their  ■ 
having  issue ;  for  then  the  land  became  descendible  to  all  the 
heirs  of  the  donee's  body,  and  also  liable  to  the  curtesy  of  a 
second  husband.  To  prevent  this,  it  was  enacted  by  the  statute 
De  Donis  that  where  lands  were  given  in  this  manner,  a  second 
husband  should  not  be  tenant  by  the  curtesy.  (6) 

6.  In  Littleton's  description  of  curtesy,  it  is  confined  to  women 
seised  as  heirs  in  special  tail.  There  can  be  no  doubt,  however, 
but  that  the  husband  of  a  woman  donee  in  special  tail  would  be 
also  entitled  to  curtesy. 

7.  It  was  formerly  doubted  whether  a  man  could  be  tenant  by 
the  curtesy  of  an  estate  tail,  after  failure  of  issue  capable  of  in- 
heriting the  estate ;  by  which  the  estate  tail  was  in  fact  deter- 
mined, and  the  donor's  right  to  the  reversion  accrued.  But  it 
has  been  resolved  that,  in  a  case  of  this  kind,  the  husband  should 
have  his  curtesy. 

8.  A  man,  having  issue  two  daughters,  gave  lands  to  the  elder, 
and  the  heirs  of  her  body ;  remainder  to  the  younger,  and  the 
heirs  of  her  body.  The  elder  daughter  married,  and  had  issue 
born  alive,  that  died  ;  afterwards  she  herself  died.  The  younger 
daughter  entered  upon  the  husband  of  the  elder,  who  claimed  to 
be  tenant  by  the  curtesy.  It  was  objected  that  the  husband 
should  not,  in  this  case,  be  tenant  by  the  curtesy,  because  the 
estate  of  the  wife  was  determined  ;  and  the  estate  of  the  husband, 
which  was  derived  out  of  that  of  the  wife,  could  not  continue 
longer  than  the  primitive  estate  endured;  for,  cessante  statu 
primitivo,  cessat  derivativus.  But  it  was  answered  and  resolved 
that,  at  common  law,  if  lands  had  been  given  to  a  woman  and 
the  heirs  of  her  body,  and  she  had  taken  a  husband,  and  had 
issue,  and  the  issue  had  died,  and  the  wife  had  died  without 

(a)  Stedman  v.  Pulling,  3  Atk.  423.         (i)  Paine's  case,  8  Rep.  35.  b.     2  lust.  336. 


Title  V.     Curtesy.     Ch.  II.  s.  8—11.  163 

issue,  whereby  the  inheritance  of  the  land  *  reverted  to  *147 
the  donor ;  in  that*  case  the  estate  of  the  wife  was  deter- 
mined, and  yet  the  husband  should  be  tenant  by  the  curtesy ; 
for  that  was  tacite  implied  in  the  gift ;  that  the  husband  was, 
therefore,  entitled,  in  this  case,  to  hold  the  estate  tail  during  his 
life,  as  tenant  by  the  curtesy.  The  estate  by  the  curtesy  was 
not  derived  merely  out  of  the  estate  of  the  wife,  but  was  given 
to  the  husband  by  the  privilege  and  benefit  of  the  law ;  for,  as 
soon  as  the  husband  had  issue,  his  title  became  initiate,  and  could 
not  afterwards  be  defeated  by  the  death  of  the  issue ;  which, 
being  the  act  of  God,  ought  not  to  turn  to  his  prejudice,  (a) 

9.  Curtesy  is  an  incident  so  inseparably  annexed  to  an  estate 
tail,  that  it  cannot  be  restrained  by  any  proviso  or  condition 
whatever,  (b) 

10.  A  man  may  be  tenant  by  the  curtesy  of  an  estate  in  fee 
simple,  or  in  tail,  held  in  coparcenary,  or  in  common  with 
other  persons ;  of  which  an  account  will  be  given  under  those 
titles,  (c) 1 

(11.  Although,  by  the  common  law,  the  feme  cestui  que  use 
had  no  such  seisin  as  would  entitle  the  husband  to  a  tenancy  by 
the  curtesy ;  yet,  as  Equity  follows  the  Law  in  the  quality  of 
estates,  it  is  a  general  rule  in  Equity  that  a  husband  will  become 
entitled,  as  tenant  by  the  curtesy,  whenever  the  wife,  during 
the  coverture,  is  in  possession  of  an  equitable  estate  of  inheri- 
tance, and  has  issue,  by  the  husband,  capable  of  that  inheritance.2 
And  though  this  right  of  the  husband  may,  perhaps,  be  excluded 
by  a  possession  of  the  estate  strictly  adverse  to  the  title  of  the 
husband  and  wife,  during  the  whole  period  of  the  coverture  ;  yet 
the  possession  of  the  estate  by  another,  in  conformity  with  their 
title,  for  however  short  a  time  during  the  coverture,  and  after 
the  interest  of  the  wife  has  become  vested  in  possession,  will 
support  the  title  of  the  husband  as  tenant  by  the  curtesy.3) 

(a)  Paine's  case,  8  Rep.  34.  1  Inst.  30.  a.   (6)  1  lost.  224.  a.    6  Rep.  41.  a.   (c)  Tit.  19  &  20. 


P  Buckley  v.  Buckley,  11  Barb.  Sup.  Ct.  43.] 

-  Morgan  v.  Morgan,  5  Madd.  R.  408  ;  Davis  v.  Mason,  1  Pet.  S.  C.  R.  503,  !508  ; 
Watts  v.  Ball,  1  P.  Wms.  108;  Chaplin  v.  Chaplin,  3  P.  Wins.  229,  234;  Casborne 
v.  Inglis,  1  Atk.  003  ;  2  Eq.  Ca.  Abr.  728 ;  4  Kent,  Coram.  30,  31. 

3  Parker  v.  Carter,  4  Hare,  400.  And  sec  Follett  v.  Tyrer,  14  Sim.  125.  [Borland 
v.  Marshall,  2  Ohio  (N.  S.)  308;  Mitchell  v.  Ryan,  3  lb.  377.] 


164  Title  V.     Curtesy.     Ch.  II.  s.  12—15. 

(12.  In  some  of  the  United  States,  it  is  expressly  enacted  by- 
statute,  that  the  husband  shall  be  tenant  by  the  curtesy  of  any 
equitable  estate  of  inheritance  of  the  wife,  in  the  same  manner  as 
of  a  legal  estate  of  which  she  was  seised.1) 

13.  It  has  been  stated  to  be  a  rule  in  equity  that  money  agreed 
or  directed  to  be  laid  out  in  the  purchase  of  land,  shall  be  con- 
sidered as  land  to  all  intents  and  purposes.  And  upon  this 
principle  it  has  been  held  that  a  man  may  be  tenant  by  the 
curtesy  of  money  agreed  or  directed  to  be  laid  out  in  the  pur- 
chase of  land,  (a)  2 

14.  A  person  devised  £300  to  her  daughter  Mary,  to  be  laid 
out  by  her  executrix  in  the  purchase  of  land,  and  settled  to  the 
only  use  of  her  said  daughter  and  her  children  ;  if  she  died 
without  issue,  the  lands  to  be  equally  divided  between  her 
brothers  and  sisters.  The  plaintiff  married  Mary,  the  legatee, 
and  had  issue  by  her.  She  and  her  children  being  dead,  and  the 
money  not  laid  out  in  land,  the  bill  was,  that  the  plaintiff  might 
either  have  the  money  laid  out  in  the  purchase  of  land,  and 

settled  on  him  for  life,  as  tenant  by  the  curtesy,  or  have 
148*     the  interest  of  it  during  his  life.     *The  Court  observed, 

that  if  this  had  been  an  immediate  devise  of  land,  the 
devisee  would  have  been  tenant  in  tail,  consequently  the  husband 
would  have  been  tenant  by  the  curtesy.  It  was,  therefore,  de- 
creed that  the  money  should  be  considered  as  land ;  and  that  the 
plaintiff  should  have  the  interest  and  produce  thereof  during  his 
life,  as  tenant  by  the  curtesy,  (b) 

15.  An  equity  of  redemption  of  an  estate  in  fee  simple  which 

(a)  Tit.  1.  s.  4.  (Davis  v.  Mason,  1  Pet.  S.  C.  R.  503,  508  ;  Green  v.  Green,  1  Ham.  Ohio, 
P.  244.) 

(b)  Sweetaple  v.  Bindon,  2  Vera.  536.  Cunningham  v.  Moody,  1  Yes.  174.  Bodson  v. 
Hay,  3  Bro.  C.  C.  404.  S.  P. 


1  See  LL.  Alabama,  by  Toulmin,  p.  247  ;  Kentucky,  Rev.  St.  Vol.  I.  p.  44  ;  LL. 
Maryland,  by  Dorsey,  Vol.  I.  p.  701  ;  Mississippi,  Rev.  St.  p.  353,  How.  &  Hutch,  cd. : 
[Rabb  v.  Griffin,  26  Miss.  (4  Cushm.)  579.]  Virginia,  Stat.  1785,  Hening's  St.  at  Large. 
Vol.  XII.  ch.  62,  p.  157,  158.  See  further,  Houghton  v.  Hapgood,  13  Pick.  154; 
Robison  v.  Codman,  1  Sumn.  28. 

2  So,  where  the  wife's  lands  are  sold  by  order  of  Court  under  a  process  in  partition, 
the  husband  is  entitled  to  the  proceeds  of  the  sale,  as  tenant  by  the  curtesy,  on  giving 
security  to  account  for  the  principal  at  her  decease,  under  the  statutes  of  Pennsylvania. 
Clepper  v.  Livergood,  5  Watts,  115. 


Title  V.     Curtesy.     Ch.  II.  s.  15—21.  165 

is  mortgaged  in  fee,  or  for  years,  has  been  decreed  to  be  subject 
to  curtesy ;  of  which  an  account  will  be  given  hereafter,  (a)  1 

16.  Some  incorporeal  hereditaments,  such  as  advowsons,  tithes, 
commons,  and  rents,  are  liable  to  curtesy ;  of  which  an  account 
will  be  given  under  those  respective  titles. 

17.  Having  stated  the  different  kinds  of  property  which  are 
liable  to  curtesy,  it  will  now  be  necessary  to  inquire  what  things 
are  not  subject  to  this  right. 

18.  No  estates  in  land  are  subject  to  curtesy,  but  those  of  in- 
heritance ;  for  an  estate  by  the  curtesy  is  a  continuation  of  the 
inheritance;  and,  therefore,  there  can  be  no  tenancy  by  the 
curtesy,  unless  the  children  take  the  inheritance ;  for  it  is  abso- 
lutely necessary  that  the  moment  the  husband  takes  as  tenant  by 
the  curtesy,  the  inheritance  should  descend  from  the  wife  to  her 
child  or  children. 

19.  Lands  were  devised  to  Ann  Boothby  and  her  assigns  for 
her  life ;  if  she  married,  and  had  issue  male  of  her  body  living  at 
the  time  of  her  death,  then  to  such  issue  male  and  his  heirs  male 
forever.  Ann  Boothby  married,  had  issue,  and  died  in  the  life- 
time of  her  husband.  It  was  held  that  the  inheritance  never 
having  been  vested  in  the  wife  during  her  life,  her  husband  could 
not  be  tenant  by  the  curtesy,  (b) 

20.  Lands  were  devised  to  A  and  her  heirs  ;  if  she  died  before 
her  husband,  he  to  have  .£20  a  year;  the  remainder  to  go  to  the 
children.  The  wife  died  before  her  husband.  The  Court  said 
it  was  a  rule,  in  the  case  of  a  tenancy  by  the  curtesy,  that  the 
estate  should  come  out  of  the  inheritance,  and  not  out  of  the 
freehold;  therefore  the  husband  was  not  entitled  to  curtesy,  (c) 

21.  A  woman,  tenant  in  tail,  previous  to  her  marriage,  con- 
veyed her  estate,  by  lease  and  release,  to  trustees,  to  the  use  of 
her  husband  for  life,  remainder  to  herself  for  life,  remainder  to 
the  first  and  other  sons  of  the  marriage.     The   woman 

died  in  the  *  lifetime  of  her  husband ;  and  it  was  held     *  149 
that  the  husband  did  not  take  any  estate  under  the  settle- 

(a)  Tit.  15.  c.  3. 

(*j  Boothby  v.  Vernon,  9  Mod.  147.     See  also  Roberts  v.  Dixwell,  tit.  38.  c.  14.  s.  60. 

(<■■)  Sumner  v.  Partridge,  2  Atk.  47.     See  also  Barker  r.  Barker,  2  Sim.  249. 


I1  In  Missouri,  a  husband  is  entitled  to  curtesy  in  the  equitable  estate  of  his  wife 
Alexander  v.  Warrand,  17  Mis.  (2  Bennett.)  228.] 


166  Title  V.     Curtesy.     Ch.  II.  s.  21—24. 

ment,  because  it  was  not  competent  to  the  wife  to  pass  the  estate 
by  such  a  conveyance,  to  the  prejudice  of  her  issue,  after  her 
death,  and  that  he  did  not  take  an  estate  by  the  curtesy ;  because 
the  instant  the  marriage  took  effect,  the  estate  was  vested  in  the 
husband  during  the  joint  lives  of  himself  and  his  wife ;  conse- 
quently, there  never  was  one  moment  during  the  coverture  when 
the  wife  was  seised  of  an  estate  tail  in  possession ;  which  was 
necessary,  in  order  to  make  the  husband  tenant  by  the  curtesy,  (a) 

22.  Estates  in  fee  or  in  tail,  which  are  held  in  joint-tenancy, 
are  not  subject  to  curtesy ;  of  which  the  reason  will  be  given  in 
that  title,  (b) 

23.  Lord  Coke  says,  a  man  shall  not  be  tenant  by  the  curtesy 
of  a  remainder  or  reversion  expectant  upon  an  estate  of  freehold, 
unless  the  particular  estate  be  determined  during  the  coverture.1 
But  a  man  is  entitled  to  curtesy  of  a  reversion  expectant  on  an 
estate  for  years,  because  the  wife  was  seised  of  a  freehold,  (c)  2 

(24.  Where  a  remainder  in  fee  is  devised  in  contingency,  the 
reversion  descends  to  the  heir  until  the  contingency  happens ; 
and  if  the  heir  is  also  the  devisee  for  life,  this  descent  does  not 
merge  his  estate  for  life,  and  so  destroy  the  remainder,  for  that 
would  go  to  defeat  the  will.  If,  therefore,  the  wife  is  such 
devisee  for  life,  the  husband  will  not  be  entitled  as  tenant  by  the 
curtesy.3  But  if  the  descent  to  the  wife  is  not  immediate  from 
the  devisor,  as,  for  example,  if  it  descended  first  to  his  son  and 
heir,  and  from  him  to  the  wife,  there  is  no  inconsistency  in 
applying  the  general  rule  as  to  merger,  and  holding  the  remainder 
thereby  defeated,  and  so  the  husband  entitled  as  tenant  by  the 
curtesy ;  for,  in  this  case,  the  will  is  upheld,  and  the  remainder 
is  admitted  to  be  good  in  its  creation,  and  is  only  held  liable  to 
be  destroyed  by  those  accidents  to  which  such  estates  are  in  gen- 
eral exposed.4) 

(a)  Doe  v.  Rivers.  7  Term  E.  276.  (5)  Tit.  18. 

(r )  1  Inst.  29.  a.     Ante,  c.  1.  s.  10. 

P  See  Tayloe  v.  Gould,  10  Barb.  Sup.  Ct.  388;  Mackey  v.  Proctor,  12  B.  Mon. 
433.] 

[2  So  in  North  Carolina.     Carter  v.  Williams,  8  Ire.  Eq.  177.] 

3  Archer's  case,  1  Co.  66;  Pluii^et  v.  Holmes,  1  Lev.  11 ;  1  Lcl.  llaym.  28;  Boothby 
v.  Vernon,  9  Mod.  147. 

4  Kent  v.  Harpoole,  1  Ventr.  306;  Hooker  v.  Hooker,  Cas.  temp.  Hardw.  13;  Doe 
v.  Scudamore,  2  B.  &  P.  289,  294  ;  Fearne  on  Rem.  502,  503,  5th  ed. 


Title  V.     Curtesy.     Ch.  II.  s.  25—31.  167 

25.  A  man  cannot  be  tenant  by  the  curtesy  of  lands  which  are 
assigned  to  a  woman  for  her  dower;  of  which  the  reasons  will 
be  given  in  the  next  title. 

26.  An  estate  by  the  curtesy  is  no  more  than  a  bare  estate  for 
life ;  nor  has  this  tenant  any  more  privileges  than  a  mere  tenant 
for  life.1  By  the  custom  of  Normandy,  it  was  determinable  upon 
the  second  marriage  of  the  tenant ;  which,  we  have  seen,  is  still 
the  case  in  gavelkind  lands. 

27.  An  estate  by  the  curtesy  is  considered,  in  many  respects, 
as  a  continuation  of  the  wife's  estate ;  therefore  the  husband  is 
entitled  to  all  those  rights  and  privileges  which  his  wife  would 
have  had  if  she  were  alive,  and  which  were  annexed  to  her 
estate,  (a) 

28.  No  entry  is  necessary  to  complete  this  estate ;  for  on  the 
death  of  the  wife,  the  law  adjudges  the  freehold  to  be  in  the 
husband  immediately,  as  tenant  by  the  curtesy.  (&) 

*  29.  Where  an  estate,  of  which  a  man  is  tenant  by  the     *  150 
curtesy,  is  charged  with  the  payment  of  a  sum  of  money ; 
the  person  entitled  to  the  inheritance  can  oblige  the  tenant  by 
the  curtesy  to  keep  down  the  interest,  as  well  as  any  other  tenant 
for  life,  (c) 

30.  The  tenant  by  the  curtesy  shall  be  attendant  on  the  lord 
paramount  for  the  services  due  in  respect  of  the  lands  that  he 
holds  by  this  title,  (d) 

31.  If  a  tenant  by  the  curtesy  aliens  (by  feoffment)  in  fee,  or 
in  tail,  or  for  the  life  of  the  grantee,  it  is  a  forfeiture  of  his  estate  ; 
and  the  person  in  reversion  may,  by  the  Stat,  of  Westminster  2, 
c.  24,  have  a  writ  of  entry,  in  consimili  casu.(e)  2 

(«)  Walker's  case,  3  Rep.  22.  b. 

(6)  Bro.  Ab.  Praecipe,  38.     (Witham  v.  Perkins,  2  Greenl.  400.)  (c)  1  Atk.  606. 

(d)  2  Inst.  301.    Paine's  case,  8  Rep.  36.  a.  (e)  2  Inst.  309. 


1  In  Pennsylvania,  the  husband's  title  as  tenant  of  the  freehold,  does  not  commence 
until  the  death  of  the  wife.     Supra,  ch.  1,  §  15,  note  (1.) 

2  For  the  law  of  forfeiture  by  alienation,  in  the  United  States,  see  tit.  3,  ch.  1,  §  36, 
note.  In  New  Jersey,  it  is  provided  by  statute,  that  an  alienation  by  the  husband,  of 
the  wife's  inheritance,  though  with  a  covenant  purporting  to  bind  him  and  his  heirs  to 
a  warranty,  shall  neither  work  a  discontinuance  of  the  estate  of  the  wife,  nor  estop  her 
heirs  from  claiming  the  inheritance.  iV.  Jersey,  Eev.  St.  1820,  p.  347,  348.  Sec,  also, 
McKee  v.  Pfout,  3  Dall.  486.  [Flagg  v.  Bean,  5  Foster  (N.  H.)  49  ;  Johnson  v.  Brad- 
ley, 9  Ired.  362.] 


168  Title  V.     Curtesy.     Ch.  II.  s.  32—35. 

32.  Tenants  by  the  curtesy  are  restrained  by  the  Stat,  of  Glou- 
cester, 6  Edw.  I.  c.  1,  from  barring  the  heirs  of  their  wives  by 
warranty  without  assets,  (a) 

33.  A  husband  does  not  forfeit  his  right  to  an  estate  by  the 
curtesy,  by  leaving  his  wife,  and  living  in  adultery  with  another 
woman,  (b)  1 

34.  It  appears  to  have  been  doubtful  whether  a  tenant  by  the 
curtesy  was  punishable  at  common  law  for  waste.  It  was,  there- 
fore, enacted,  by  the  Stat,  of  Gloucester,  6  Edw.  I.  c.  5,  that  a 
writ  of  waste  might  be  brought  against  him,  and  that  he  should 
incur  the  same  penalties  for  committing  waste  as  any  other  ten- 
ant for  life,  (c) 

35.  There  is  such  a  privity  of  estate  between  the  tenant  by 
the  curtesy  and  the  heir,  that  at  common  law,  although  both  had, 
as  it  were,  by  consent,  granted  away  their  estates,  yet  no  action 
of  waste  lay  against  any  other  than  the  tenant  by  the  curtesy ; 
nor  against  him,  by  any  other  than  the  heir  at  law.  By  the 
Statute  of  Gloucester,  c.  5,  a  remedy  is  provided  for  the  grantee 
of  the  reversion,  against  a  tenant  by  the  curtesy,  so  long  as  he 
continues  his  estate ;  or  against  his  assignee.  But  while  the 
heir  keeps  his  reversion,  the  tenant  by  the  curtesy  is  liable  to  his 

(a)  Tit.  32.  c.  25.  (b)  3  P.  Wms.  276.     (Smoot  v.  Lecatt,  1  Stew.  590.) 

(c)  2  Inst.  145,  301,  353.     Sup.  p.  120.  n. 


1  This  rule  of  the  common  law  has,  in  several  of  the  United  States,  been  altered  by 
statute,  and  made  to  conform  in  this  respect  to  the  Stat.  Westm.  2,  c.  34,  by  which 
adultery  works  a  forfeiture  of  dower.  See  Indiana  Rev.  St.  1843,  ch.  28,  §  141,  p.  441  ; 
Illinois  Rev.  St.  p.  238,  §  11.  In  Maryland,  curtesy  is  forfeited  by  a  conviction  of  po- 
ligamy.  LL.  Maryl.  by  Dorsey,  Vol.  I.  p.  580.  In  Ohio,  it  is  also  forfeited  by  suffer- 
ing the  land  to  be  sold  for  the  non-payment  of  taxes,  without  redemption.  Ohio  Rev. 
St.  1841,  ch.  118,  §  66,  p.  923.  Generally,  iu  the  United  States,  a  divorce  from  the 
bond  of  matrimony  restores  to  the  wife  her  lands,  free  of  all  claims  of  the  husband, 
unless  she  is  the  guilty  cause  of  tbe  divorce.  See  Missouri  Rev.  St.  1845,  ch.  53,  §  8, 
p.  428  ;  Arkansas  Rev.  St.  p.  335,  ch.  51,  §  13  ;  Michigan  Rev.  St.  1838,  p.  339 ;  LL.  A*. 
Island,  1844,  p.  264;  N.  York  Rev.  St.  Vol.  II,  p.  205,  3d  ed.;  LL.  North  Carolina, 
Vol.  I.  p.  241 ;  Maine  Rev.  St.  ch.  9,  §  15,  16 ;  Massachusetts  Rev.  St.  ch.  76,  §  27,  33; 
Starr  v.  Pease,  8  Conn.  R.  541  ;  Oldham  v.  Henderson,  5  Dana,  256  ;  Vermont  Rev. 
St.  p.  326.  In  New  Hampshire,  the  subject  is  confided  to  the  discretion  of  the  Court. 
N.  Hamp.  Rev.  St.  p.  294.  See  also  LL.  Alabama  by  Toulmin,  p.  256.  Barber  v. 
Root,  10  Mass.  260  ;  Kriger  v.  Day,  2  Pick.  316.  But  this  general  rule  may  be  con- 
trolled by  any  antenuptial  contract.  Babcock  v.  Smith,  22  Pick.  61.  See  further, 
Wheeler  v.  Hotchkiss,  10  Conn.  225 ;  Mattocks  v.  Stearns,  9  Verm.  326. 


Title  V.     Curtesy.     Ch.  II.  s.  35—36.  169 

action  of  waste,  notwithstanding  any  assignment ;    the  statute 
having  provided  no  remedy  for  this  case.  («) 

36.  It  appears  somewhat  doubtful  whether  tenant  by  the 
curtesy  is  within  the  Statute  6  Anne,  c.  31,  respecting  accidental 
fire,  (b) 

(a)  2  Inst.  301.    2  Bac.  Ab.  8vo.  p.  230.  (b)  1  Inst.  57.  a.  n.  1.     Tit.  3.  c,  2. 


VOL.    I.  15 


170 


TITLE  VI. 

DOWER. 
BOOKS    OF   REFERENCE    UNDER    THIS    TITLE 

Coke  upon  Littleton,  30 — 41. 

Blackstone's  Commentaries.    Book  II.  ch.  8. 

Kent's  Commentaries.    Lect.  55. 

Park.     On  the  Law  of  Dower. 

Bisset.     On  Estates  for  Life.     Ch.  IV. 

Rolandus  a  Valle.     Tractatus  de  Lucro  Dotis. 

Jackson.     On  Real  Actions.     Ch.  XVI. 

Stearns's  Summary  of  the  Law  and  Practice  of  Real  Actions.     Ch.  V. 

Chambers.     On  Estates  and  Tenures,  p.  96 — 110. 

Roper.     On  the  Law  of  Property  arising  from  the  relation  between  Husband 

and  Wife.     Ch.   IX.  and  Addenda,  Xo.  1. 
Lambert.     On  Dower. 

Flintoff.     On  Real  Property.     Vol.  II.  Book  I.  ch.  3. 
Story.     On  Equity  Jurisprudence.     Vol.  I.  ch.  12. 

CHAP.  I.  • 

ORIGIN    AND    NATURE    OF    DOWER. 

CHAP.  II. 

OP    WHAT    THINGS    DOWER   MAY    BE,    AND    NATURE    OF   THIS    ESTATE. 

CHAP.  III. 

ASSIGNMENT    OF    DOWER   AND    MODES    OF    RECOVERING    IT. 

CHAP.  IV. 

WHAT    WILL    OPERATE    AS    A    BAR    OR    SATISFACTION    OF    DOWER. 


CHAP.  I. 

ORIGIN    AND    NATURE    OF   DOWER 

Sect.     1.   Origin  of  Dower. 

5.  Dower  at  Common  Laic. 
7.  Doicer  by  Custom. 

11.  Circumstances  required. 

12.  I.  Marriage. 
14.  How  proved. 

Section  1.  The  third  estate  for  life,  derived  from  the  law,  is 
that  which  a  widow  acquires  in  a  certain  portion  of  her  hus- 


Sect.  15.  Effect  of  Divorces. 

19.  II.  Seisin  of  the  Husband. 

26.  III.  Death  of  the  Husband. 

27.  Who  may  be  endowed. 

28.  Who  are  incapable  of  Dower. 

29.  Aliens. 


Title  VI.     Dower.     Ch.  I.  s.  1—3.  171 

band's  real  property,  after  his  death,  for  her  support  and  main- 
tenance.    It  is  called  Doivcr,  and  is  derived  from  the  Germans, 
among  whom  it  was  a  rule  that  a  virgin  should  have  no 
marriage  portion,  but* that  the  husband  should  allot  a     *  152 
part  of  his  property  for  her  use,  in  case  she  survived  him. 
Thus  Tacitus  says, — Dotem  non  uxor  marito,  sed  uxori  marilus 
offert.     And  when  the   Germans  established  themselves  in  the 
southern  parts  of  Europe,  and  reduced  their  customs  into  writing, 
they  fixed  the  portion  of  the  husband's  lands  which  he  might 
allot  for  his  wife's  dower.     The  Longobardic  code  directed  that 
it  should  consist  of  a  fourth  part,  the  Gothic  of  a  tenth ;  and  in 
process  of  time  regular  forms  were  invented  for  the  purpose  of 
constituting  dower,  (a) 

2.  The  Saxons,  like  all  the  other  German  nations,  were  well 
acquainted  with  the  custom  of  dower  ;  for  it  appears  from  the 
laws  of  King  Edmund,  that  a  widow  was  entitled  to  a  moiety  of 
her  husband's  property,  for  her  life  ;  but  which  she  forfeited  by 
a  second  marriage.  In  the  Appendix  to  Somner's  Gavelkind, 
there  is  a  Saxon  charter,  intituled  Chirographum  Pervetustum 
de  Nuptiis  contrahendis,  et  dote  Constituendd,  in  which  particular 
lands,  together  with  thirty  oxen,  twenty  cows,  ten  horses,  and 
ten  bondmen,  are  appointed  for  the  wife's  dower.  It  is  not 
known  whether  the  Conqueror  made  any  alteration  in  the  Anglo- 
Saxon  customs  respecting  dower  ;  so  that  it  probably  continued 
to  consist  of  a  moiety  of  the  husband's  lands,  upon  condition  that 
the  widow  remained  chaste  and  unmarried.  But  by  the  charter 
of  King  Henry  I.  this  condition  of  chastity  and  widowhood  was 
only  required  where  there  was  issue.  (6) 

3.  The  law  of  dower  appears,  however,  to  have  been  altered  in 
the  reign  of  King  Henry  II. ;  for  Glanville  states  it  thus.  Every 
man  was  bound,  both  by  the  civil  and  ecclesiastical  law,  to 
endow  his  wife  at  the  time  of  his  marriage  ;  either  by  naming 
the  dower  in  particular,  or  by  endowing  her  generally  of  all  his 
lands.  If  he  endowed  her  generally,  then  the  wife  was  entitled 
to  her  dos  rationabilis,  which  was  one  third  of  her  husband's 
freehold.  If  he  named  a  dower  which  amounted  to  more  than 
a  third,  it  was  not  allowed,  but  was  reduced  to  a  third.  Nor 
was  the  wife  entitled  to  dower  out  of  any  of  her   husband's 

(a)  Du  Cange  Voce  Dos.  Baluz.  Form.  vol.  2.  414.  937.    Marculp.  Form.  c.  15. 
(4)  Lindebrog,  LI.  Sax.  tit.  7. 


172  Title  VI;    Dower.     Ch.  I.  s.  3—5. 

subsequent  acquisitions,  unless  he  specially  engaged  before  the 
priest  to  endow  her  of  them,  (a)  And  these  regulations  are 
exactly  similar  to  those  contained  in  the  Grand  Coustumier  of 
Normandy,  (b) 

4.  Nothing  is  mentiond  in   King  John's  Magna  Charta,  or  the 
first  Charter  of  Henry  III.  respecting  dower ;  but  in  the  charters 

of  1217,  and  1224,  it  is  declared  that  dower  should  consist 
153  *     *of  a  third  of  all  the  lands  which  the  husband  held  during 

his  life,  unless  the  wife  had  been  endowed  of  a  smaller 
portion  at  the  church  door.f  Assignetnr  autem  ei  pro  dote  sua, 
teriia  pars  totius  terrce  mariti  siri,  quce  fuit  sua  in  vitd  sua,  nisi  de 
minori  fuerit  dotata  ad  ostium  ecclesice.  (c) 

5.  Dower  at  common  law  is  thus  described  by  Littleton,  s.  36. 
"  Tenant  in  dower  is  where  a  man  is  seised  of  certain  lands  and 
tenements  in  fee  simple,  fee  tail  general,  or  as  heir  in  special  tail, 
and  taketh  a  wife,  and  dieth ;  the  wife,  after  the  decease  of  her 
husband,  shall  be  endowed  of  a  third  part  of  such  lands  and 
tenements  as  were  her  husband's  at  any  time  during  the  cover- 
ture ; l  to  have  and  to  hold  the  same  to  the  wife  in  severalty,  by 

(a)  Lib.  6.  c.  1,  2,  &c.  (6)  c.  101.  (c)  Blackst.  Charters.  2  Inst.  16. 


[t  Assignment  of  Dower  ad  ostium  ecclesice  or  ex  assensu  patris  are  now  abolished  by 
Stat.  3  &  4  Will.  4,  c.  105,  s.  13.] 

i  In  most  of  the  United  States,  the  right  of  the  wife  to  her  dower  is  the  same  as  is 
here  stated  in  the  text.  But  as  her  inchoate  title  is  an  existing  incumbrance  upon  the 
land,  it  is  usual  for  the  purchaser  to  require  a  release  of  her  right,  upon  any  sale  made 
by  the  husband  ;  which  is  generally  done  by  her  joining  with  him  in  the  deed,  with  apt 
words  for  that  purpose.  Where  this  is  not  done,  it  is  seldom  that  the  widow  claims 
dower  in  lands  sold  by  the  husband,  if  he  has  left  sufficient  assets  to  respond  to  his 
covenant  of  warranty ;  because  the  damages  recovered  by  the  grantee  will  diminish  her 
share  of  the  personalty,  and  that  of  her  own  children  also,  if  she  had  any  by  the  hus- 
band. In  several  of  the  States,  however,  her  right  of  dower  is  restricted  to  lands  of 
which  the  husband  died  seised.  Such  is  the  law  of  Vermont,  Rev.  St.  1839,  ch.  51 ;  and 
of  New  Hampshire,  Rev.  St.  1842,  ch.  165,  §  3,  and  ch.  205,  §  7  ;  and  of  Tennessee,  Ca- 
ruthers  &  Nicholson's  Dig.  p.  262;  and  of  North  Carolina,  Rev.  St.  1837,  ch.  121,  p.  612, 
613,  [but  seisin  is  not  complete  without  registry  of  the  deed  under  which  the  title  is 
claimed,  Thomas  v.  Thomas,  10  Ire.  123;]  and  of  Connecticut,  Rev.  St.  1838,  tit.  25, 
p.  18S;  and  of  Georgia,  Prince's  Dig.  1838,  p.  253.  In  South  Carolina,  the  real  estate 
of  an  intestate  is  distributed,  one  third  to  the  widow  in  fee,  and  the  residue  to  his  chil- 
dren ;  and  if  the  intestate  leaves  no  lineal  descendant  nor  lineal  ancestor,  nor  brother 
or  sister  of  the  whole  blood,  or  their  children,  nor  brother  or  sister  of  the  half  blood, 
his  widow  takes  two  thirds  of  the  real  estate  in  fee ;  and  in  all  other  cases  she  takes  a 
moiety.  South  Car.  Statutes  at  Large,  Vol.  V.  p.  162,  163.  In  Georgia,  the  widow 
and  children  of  an  intestate  inherit  his  estate  in  equal  shares ;  and  if  he  dies  without 
issue,  she  inherits  the  whole.    And  in  all  cases,  the  widow  is  bound,  within  one  year 


Title  VI.     Dower.     Ch.  P!  s.  5—6.  173 

metes  and  bounds,  for  term  of  her  life ;  whether  she  hath  issue 
by  her  husband  or  no,  and  of  what  age  soever  the  wife  be,  so  as 
that  she  be  past  the  age  of  nine  years,  at  the  time  of  the  death 
of  her  husband." 

6.  It  has  been  stated  that  curtesy  is  founded  on  positive  insti- 
tutions ;  but  dower  is  not  only  a  civil,  but  also  a  moral  right. 
Thus  Sir  Joseph  Jekyll  says,  "  the  relation  of  husband  and  wife, 
as  it  is  the  nearest,  so  it  is  the  earliest ;  and,  therefore,  the  wife 
is  the  proper  object  of  the  care  and  kindness  of  the  husband. 
The  husband  is  bound  by  the  law  of  God  and  man  to  provide 
for  her  during  his  life ;  and  after  his  death  the  moral  obligation 
is  not  at  an  end,  but  he  ought  to  take  care  of  her  provision  dur- 
ing her  own  life.  This  is  the  more  reasonable,  as  during  the 
coverture,  the  wife  can  acquire  no  property  of  her  own.  If  before 
her  marriage  she  had  a.  real  estate,  this  by  the  coverture  ceases 
to  be  hers  ;  and  the  right  thereto,  while  she  is  married,  vests 
in  her  husband.      Her  personal  estate  becomes  his  absolutely, 

from  the  death  of  her  husband,  to  elect  whether  she  will  take  under  the  will,  if  any.  or 
the  statute  of  distributions,  if  there  is  no  will,  or  will  claim  her  dower ;  and  if  she  does 
not  so  elect,  she  will  be  presumed  to  have  claimed  her  dower.  Prince's  Dig.  p.  233, 
23S,  239,  249,  253.  In  Ohio,  the  widow  is  dowable  not  only  of  her  husband's  legal 
estates  of  inheritance,  but  also  "  of  one  third  part  of  all  the  right,  title  or  interest,  that 
her  husband,  at  the  time  of  his  decease,  had  in  any  lands  and  tenements,  held  by  bond, 
article,  lease,  or  other  evidence  of  claim."  Ohio  Rev.  St.  1841,  ch.  42,  §  1 ;  Smiley  v. 
Wright,  2  Ohio  R.  506.  But  she  is  held  not  dowable  of  an  equitable  estate  which  the 
husband,  in  good  faith,  has  aliened.  Derush  v.  Brown,  8  Ohio  R.  412  ;  nerv  of  lands  pur- 
chased by  him,  in  his  own  name,  with  moneys  intrusted  to  him  by  another.  Ibid.  In 
Missouri,  the  common-law  right  of  dower  is  extended  to  "leasehold  estates  for  a  term 
of  twenty  years  or  more."  Missouri  Rev.  St.  1S45,  ch.  54,  §  1 .  In  Mississippi,  if  there 
are  no  children,  nor  their  issue,  the  widow  has  one  half  of  the  land.  Howard  &  Hutch- 
inson's Dig.  p.  351.  So  in  Vermont.  Rev.  St.  1839,  ch.  51,  §  5 ;  and  in  Alabama,  Toul- 
min's  Dig.  p.  88G  ;  and  in  Arkansas,  Rev.  St.  1837,  ch.  52,  §  21 ;  and  in  Illinois,  Stat. 
Gale's  ed.  p.  698.  [The  statute  permitting  the  widow,  where  a  man  dies  intestate 
leaving  no  children  or  their  issue,  to  inherit  one  half  of  the  real  estate,  does  not  at 
all  affect  her  right  to  dower  in  the  other  half  of  the  land.  Tyson  v.  Postlethwaite,  13  111. 
732.]  In  Pennsylvania,  instead  of  dower,  the  widow  is  admitted  to  her  distributive 
share  of  the  estate,  among  the  heirs ;  and  if  the  intestate  left  issue,  she  takes  one  third 
of  the  real  estate  for  her  life  ;  if  no  issue,  she  takes  half  in  the  like  manner  ;  and  in  de- 
fault of  known  heirs  or  kindred,  she  inherits  the  whole  estate,  absolutely  and  forever. 
Purdon's  Dig.  p.  550,  552,  5th  ed.  In  Indiana,  the  widow  of  an  intestate,  in  lieu  of 
her  dower,  may  in  certain  cases  take  in  fee,  as  an  heir;  but  subject  to  the  claims  of  his 
creditors;  her  share  being  one  third,  or  one  half,  or  the  whole,  according  to  the  circum- 
stances stated  in  the  statute.  Indiana  Rev.  St.  1843,  ch.  28,  §  117—121  ;  post,  tit.  29, 
ch-  2,  note,  ad  calc. 

*15 


174  Title  VI.  *   Dower.     Ch.  I.  5.  6—12. 

or  at  least  is  subject  to  his  control ;  so  that  unless  she  has  a  real 
estate  of  her  own,  (which  is  the  case  of  but  few,)  she  may  by  his 
death  be  destitute  of  the  necessaries  of  life  ;  unless  provided  for 
out  of  his  estate,  either  by  a  jointure,  or  dower.  As  to  the  hus- 
band's personal  estate,  unless  restrained  by  special  custom,  which 
very  rarely  takes  place,  he  may  give  it  all  away  from  her.  So 
that  his  real  estate,  if  he  has  any,  is  the  only  plank  she  can  lay 
hold  of  to  prevent  her  sinking  under  her  distress.     Thus  the 

wife  is  said  to  have  a  moral  right  to  dower."  (a) 
154  *         *7.  Dower  by  custom  is  where  a  widow  becomes  entitled 

to  a  certain  portion  of  her  husband's  lands  in  consequence 
of  some  local  and  peculiar  custom.  And  in  cases  of  this  kind 
the  widow  cannot  waive  the  provision  thereby  made  for  her,  and 
claim  dower  at  common  law,  because  all  customs  are  equally 
ancient  with  the  common  law.  (b) 

8.  Thus  by  the  custom  of  gavelkind,  the  widow  is  entitled  to 
a  moiety  of  all  the  lands  and  tenements  which  her  husband  held 
by  that  tenure,  [and  of  which  he  was  seised  at  any  time  during 
the  coverture.]  This  was  formerly  called  free  bench,  and  is  for- 
feitable by  a  second  marriage,  or  by  the  having  a  bastard  child. 
And  it  is  observable,  that  this  species  of  dower  is  exactly  similar 
to  that  which  existed  in  the  time  of  the  Saxons,  (c) 

9.  By  the  custom  of  some  boroughs,  the  wife  shall  have  for 
her  dower  all  the  tenements  that  were  her  husband's ;  which  is 
also  called  free  bench,  (d) 

10.  By  the  custom  of  most  manors  of  which  lands  are  held  by 
copy  of  court  roll,  the  widows  of  copyholders  are  entitled  to  a 
certain  part,  and  sometimes  to  the  whole  of  their  husband's 
lands,  as  their  dower  or  free  bench,  (e) 

11.  Littleton's  description  of  dower  at  common  law  points 
out  three  circumstances  as  absolutely  necessary  to  create  a  title 
to  dower  ;  namely,  marriage,  seisin,  and  death  of  the  husband. 

12.  With  respect  to  the  marriage,  it  must  be  between  persons 
capable  of  contracting  together,  and  duly  celebrated  ;  for  it  is  a 
maxim  of  law,  ubi  nullum  matrimonium,  ibi  nulla  dos ;  and 
although  the  marriage  be  had  before  the  parties  are  of  sufficient 
age  to  consent ;  yet  if  the  wife  be  past  the  age  of  nine  years,  at 

(a)  2  P.  Wins.  702.  (b)  1  Inst.  33.  b. 

(c)  Rob.  Gav.  150.     17  Edw.  2.  st.  1.  c.  16.    Lambard  Arch.  GO. 

(d)  Lit.  s.  166.  (e)  Tit.  10.  ch.  3. 


Title  VI.     Dower.     Ch.  I.  s.  12—14.  175 

the  time  of  her  husband's  death,  she  shall  be  endowed,  of  what 
age  soever  her  husband  be,  although  he  were  but  four  years  old. 
Wherein  it  is  to  be  observed  (says  Lord  Coke,)  that  although 
consensus,  non  concubitus,  facit  matrimonium,  and  that  a  woman 
cannot  consent  before  twelve  years,  nor  a  man  before  fourteen  ; 
yet  this  inchoate  and  imperfect  marriage,  from  which  either  of 
the  parties  may,  at  the  age  of  consent,  disagree,  shall  entitle  the 
wife  to  dower.  Therefore  it  is  accounted  in  law,  after  the  death 
of  the  husband  legitimum  matrimonium  quoad  dotem.\  (a) 

13.  It  has  been  stated  that  though  a  marriage  be  voidable, 
yet  if  it  be  not  avoided  in  the  lifetime  of  the  parties,  it  cannot 
be  annulled  after.  And  if  a  marriage  de  facto  be  voidable  by 
divorce,  whereby  the  marriage  might  have  been  dissolved,  and 
the  parties  freed  a  vinculo  matrimonii,  yet  if  the  husband  die 

•  before  any  divorce,  then,  for  that  it  cannot  after  be  annulled,  the 
wife  de  facto  will  be  endowed,  (b) 

14.  In  actions  for  curtesy  or  dower,  the  fact  of  marriage  cannot 
be  tried  by  a  jury,  but  only  by  the  bishop's  certificate,  upon  the 
plea  of  ne  unques  accouple  in  loyal  matrimony.  Because  the 
direct  jurisdiction  in  question  concerning  the  legality  of  marriage 
belongs  to  the  ecclesiastical  courts ;  and  the  sentences  of  those 
courts,  on  this  head,  are  in  general  conclusive  to  the  temporal 
courts.1  (c) 

15.  A  divorce  propter  seevitiam  et  metum  is  no  bar  to  dower, 

(a)  1  Inst.  32.  a.    Id.  33.  a.  (b)  Tit.  5.  c.  1.     1  Inst.  33.  b. 

(c)  Bract.  302.  a.  Dyer,  368.  b.  Bobbins  v.  Crutchley,  2  Wils.  B.  122.  Ilderton  v.  Ilder- 
ton,  2  H.  Black.  145. 


[  f  The  common  law  on  the  subject  of  marri  iges  has  been  altered  by  various  acts. 
which  have  been  repealed  by  those  now  in  force  ;  viz.  4  Geo.  4,  c.  76  ;  5  lb.  c.  32  ; 
6  ib.  c.  92 ;  11  G.  4,  &  1  Will.  4,  c.  18 ;  *  but  the  law  of  Scotland  continues  in  *  155 
the  particulars  above  noticed  according  to  the  common  law.  Where  the  parties 
ehpe  and  go  to  Scotland,  and  marry  there  according  to  the  law  of  that  country,  and 
return  immediately  afterwards,  the  wife  will  be  entitled  to  dower.  1  Ersk.  Prin.  of  the 
Law  of  Scotland,  62;  Compton  a.  Bearcroft,  Bull.  N.  P.  113;  2  Hagg.  443,  444  ; 
ib.  54;  Brook  v.  Oliver,  Rolls,  1759,  and  Bedford  v.  Varney,  Chancery,  1762,  cited 
2  Hagg.  376,  (n.)  ;  Ex  parte  Hall,  1  Ves.  &  Bea.  112,  114.  Marriages  of  English  sub- 
jects celebrated  bond  fide  in  foreign  countries,  according  to  the  law  of  those  countries, 
will  also  entitle  the  widows  to  dower.  Ilderton  v.  Ilderton,  2  Hen.  Black.  145.  See  also 
2  Hagg.  390,  395,  437  ;  also,  1  Roper,  Husband  and  Wife,  Jacob's  ed.  334,  and  addenda.] 

1  In  the  United  States,  where  there  is  no  episcopal  secular  jurisdiction,  the  fact  of 
marriage  is  tried  in  the  same  manner  as  other  issues  of  fact.  And  see  Park  on  Dower, 
12.  Hardr.  64,  65.  The  affirmative  sentence  of  any  Court  having  jurisdiction  of  the 
question  of  marriage  or  no  marriage,  is  conclusive  of  the  question.  1  Grecnl.  Lvid. 
§  484,  493,  544,  545.     2  Greenl.  Evid.  §  461. 


176  Title  VI.     Bower.     Ch.  I.  s.  15—16. 

because  it  does  not  dissolve  the  bond  of  matrimony ;  but  is  only 
a  permission  to  the  parties  to  live  separate,  in  order  that  the  wife 
may  be  secure  from  the  husband's  cruelty,  (a)' 

16.  Lord  Coke  says,  a  divorce  on  account  of  adultery  is  no 
bar  to  dower,  because  it  does  not  dissolve  the  marriage,  but  only 
separates  the  parties  a  mensd  et  thoro ;  and  the  marriage  still  re- 
mains in  force.  In  Roll.  Ab.  is  the  following  passage : — "  If  the 
wife  be  divorced  for  adultery,  which  does  not  dissolve  the  bond 
of  marriage,  by  the  canon  law,  nor  of  our  church  in  this  realm, 
but  is  only  a  mensd  et  thoro,  yet  this  shall  bar  her  of  her  dower."  J 

Lord  Coke's  doctrine,  however,  is  supported  by  a  de- 
156  *     *  termination  of  the  Court  of  Common  Pleas,  in  2  James. 

There  is  also  another  case  where  a  woman,  who  had  been 
divorced  a  mensd  et  thoro,  claimed  her  dower  in  Chancery.  And 
Sir  T.  Trevor,  M.  R.,  said:  "As  to  dower,  whether  you  are  enti- 
tled to  it,  go  to  law,  there  being  no  impediment,  and  therefore,  as 
to  that,  the  bill  must  be  dismissed."  But  it  does  not  appear  from 
the  report  whether  the  divorce  was  for  adultery.  (&) 

(o)  1  Inst.  32.  a. 

(b)  1  Inst.  32.  a.      Roll.  Ab.  Tit.  Dower  P.     (Elopement,  pi.  13.)     Stowell's  case,  Godb. 
145.     Nov,  108.     Shute  r.  Sbute,  Prec.  in  Ch.  111. 


i  A  divorce  a  vinculo  matrimonii  bars  the  claim  of  dower;  for  to  entitle  the  party 
claiming  dower,  she  must  have  been  the  wife  at  the  death  of  the  husband.  But  in  case 
of  such°  divorce  for  the  adultery  of  the  husband,  it  is  provided  in  the  statute  law  of 
those  States  which  authorize  such  divorce,  that  the  right  of  dower  shall  be  preserved, 
or  that  a  reasonable  provision  be  made  for  the  wife,  out  of  the  husband's  estate,  by  way 
of  indemnity  for  the  loss  of  her  dower,  and  of  her  husband's  protection.  4  Kent, 
Coram.  54.  In  some  of  the  United  States,  it  is  expressly  enacted  that  a  divorce  from 
the  bonds  of  matrimony  for  the  misconduct  of  the  wife,  shall  bar  her  right  of  dower. 
New  York,  Rev.  St.  Vol.  II.  p.  27,  3d.  cd.;  Arkansas,  Rev.  St.  1837,  ch.  52,  §  8. 
Whether  such  divorce  for  any  other  cause  is  intended  to  have  that  effect  in  those 
States,  is  not  known  to  have  been  decided.  [A  divorce,  obtained  by  the  wife  for  the 
adultery  of  the  husband,  bars  her  right  of  dower.  Wait  v.  Wait,  4  Barb.  Sup.  Ct.  192.] 
In  Missouri  and  Illinois,  the  language  of  the  statute  is  general,  that  if  a  woman  is 
divorced  from  her  husband,  for  her  own  fault  or  misconduct,  she  shall  forfeit  her  dower ; 
without  expressing  whether  the  provision  is  to  extend  to  divorces  a  mensd  et  thoro,  or  is 
to  be  restricted  to  divorces  from  the  bonds  of  matrimony.  Missouri  Rev.  St.  1845, 
ch.  54,  §  9.  Illinois  Rev.  St.  1837,  p.  254,  Gale's  ed.  In  Massachusetts,  the  wife  is 
dowable  on  being  divorced  a  vinculo  matrimonii  for  adultery  of  the  husband;  or  upon 
his  being  sentenced  to  the  penitentiary  for  seven  years  or  more.  Mass.  Rev.  St.  1836, 
ch.  76,  §  32,  and  ch.  102,  §  8.  In  Maine,  she  is  dowable  upon  a  similar  divorce  "for 
his  fault;"  Maine  Rev.  St.  ch.  144,  §  10;  and  in  Maryland,  upon  his  conviction  of 
bigamy.  Maryland  St.  1809,  ch.  138,  §  7.  [In  Indiana,  see  Comly  v.  Stradcr,  1  Smith, 
75;  S.  C.  1  Carter,  134  ;  McCafferty  v.  McCafferty.  8  Blackf.  218.  See,  also,  Levins 
v.  Sleator,  2  Greene,  (Iowa,)  604.] 


Title   VI.     Dower.     Ch.  I.  5.  17—20.  177 

17.  It  has,  however,  been  enacted  by  the  Statute  of  Westm. 
2,  c.  34,  that  if  a  woman  elopes  from  her  husband,  and  lives  in 
adultery,  she  will  thereby  lose  her  dower,  (a)  1 

18.  A  divorce,  causd  prcecontractus,  consanguinitatis,  offinitatis 
or  frigiditatis,  bars  the  wife  of  dower,  because  these  dissolve  the 
vinculum  matrimonii,  and  leave  the  parties  at  liberty  to  marry 
again.  But  the  marriage  must  be  dissolved  in  the  lifetime  of  the 
husband,  (b) 

19.  The  second  circumstance  required  to  the  existence  of 
dower  f  is,  that  the  husband  should  be  seised  some  time  during 
the  coverture  of  the  estate  whereof  the  wife  is  dowable.2  There 
is,  however,  no  necessity  for  a  seisin  in  deed,  as  in  the  case  of 
curtesy  ;*  for  a  seisin  in  law  will  be  sufficient,  otherwise  it  would 
be  in  the  husband's  power,  either  by  his  negligence  or  his  malice, 
to  defeat  his  wife  of  that  subsistence  after  his  death,  which  the 
law  has  provided  for  her ;  and  she  cannot  enter  to  gain  a  seisin 
in  her  own  right,  as  her  husband  may  do  in  lands  descended  to 
her,  in  order  to  entitle  himself  to  curtesy,  (c)  3 

20.  Where  the  ancestor  dies  seised,  and  the  heir  being  mar- 
ried, dies  without  making  an  actual  entry  on  the  lands,  his  widow 
shall  notwithstanding  be  endowed;  for,  by  the  descent  of  the 
land  upon  the  heir,  he  acquired  a  seisin  and  freehold  in  law, 
though  not  in  deed.  It  would  be  the  same  if,  soon  after  the 
death  of  the  ancestor,  a  stranger  had  entered  on  the  land  and 
abated;  for  between  the  death  of  the  ancestor,  and  the  entry  of 
the  abator,  there  was  a  space  of  time  during  which  the  heir  had 
a  seisin  in  law.  If,  however,  the  heir  had  married  after  the  entry 
of  the  abator,  and  had  died  without  making  an  entry,  his  widow 

(a)  Infra,  c.  4.  {b)  1  Inst.  33.  a,  (c)  Tit.  1.     Perk.  s.  366.     Lit.  s.  448. 


1  Such  is  understood  to  be  the  common  law  in  the  United  States ;  but  in  some  of 
the  States  this  provision  has  been  expressly  enacted. 

[  t  The  late  act  for  the  amendment  of  the  law  of  dower  does  not  extend  to  the  dower 
of  any  widow  who  shall  have  been,  or  who  shall  be  married  on  or  before  Jan.  1,  1834. 
Stat.  3  &  4  Will.  4,  c.  105,  s.  14.] 

2  In  Vermont,  New  Hampshire,  Tennessee,  North  Carolina,  Connecticut,  and  Georgia,  the 
husband  must  have  died  seised.     See  ante,  $  5,  note ;  [Walters  v.  Jordan,  13  Ired.  361.] 

[3  The  mere  fact  that  a  husband  at  his  death  had  possession  of  land  is  such  a  seisin 
as  will  entitle  the  widow  to  dower,  as  against  his  representatives  and  all  who  do  not 
claim  by  superior  title.  Torrence  v.  Carbry,  27  Miss.  (5  Cushm.)  697  ;  Henry's  case, 
4  Cush.  257.] 


178  Title  VI.     Dower.     Ch.  I.  s.  20—24. 

would  not  be  entitled  to  dower ;  because  the  seisin  in  law 
157  *     which  he  had  *  acquired,  upon  the  death  of  the  ancestor, 

was  devested  by  the  abatement  before  the  marriage ;  so 
that  the  heir  had  neither  seisin  in  law,  nor  in  deed,  during  the 
coverture,  (a) 

21.  Where  the  lands  are  conveyed  to  a  married  man  by  a  deed 
deriving  its  effect  from  the  Statute  of  Uses,  his  wife  will  be  en- 
titled to  dower,  though  the  husband  does  not  enter ;  because  by 
the  operation  of  that  statute  a  seisin  in  deed  is  transferred,   (b)  f 

22.  If  a  man  makes  a  lease  for  life,  reserving  rent  to  him  and 
his  heirs,  then  marries  and  dies,  his  wife  shall  not  be  endowed 
of  the  reversion,  because  there  was  no  seisin  in  deed,  or  in  law,  of 
the  freehold;  nor  of  the  rent,  because  the  husband  had  but  a 
particular  estate  therein,  and  no  fee  simple.  But  if  a  man  makes 
a  lease  for  years,  reserving  rent,  then  marries  and  dies,  his  wife 
shall  be  endowed,  because  he  continues  to  be  seised  of  the  free- 
hold and  inheritance,  (c) 

23.  If  a  person  devises  lands  to  his  executors  for  payment  of 
debts,  and  after  his  debts  paid  to  his  son  in  tail,  and  the  son 
marries,  and  dies  before  the  debts  are  paid,  his  wife  shall  have 
dower ;  because  the  estate  of  the  executors  is  only  a  chattel 
interest,  and  the  freehold  vested  in  the  son  on  the  death  of  the 
father.  But  the  wife's  dower  will  not  commence  till  the  debts 
are  paid,  (d) 

24.  It  is  laid  down  by  Lord  Coke,  that  of  a  seisin  for  an  instant, 
a  woman  shall  not  be  endowed.  This  position  is  thus  explained 
by  Sir  W.  Blackstone  : — "  The  seisin  of  the  husband  for  a  tran- 
sitory instant  only,  when  the  same  act  which  gives  him  the 
estate  conveys  it  also  out  of  him  again,  (as  where,  by  a  fine,  land 
is  granted  to  a  man,  and  he  immediately  renders  it  back  by  the 
same  fine,)  such  a  seisin  will  not  entitle  the  wife  to  dower,  for 

(a)  Plowd.  371.    (Galbraith  v.  Green,  13  S.  &  E.  85.)    Perk.  367.  (6)  Tit.  11.  c.  3. 

(c)  1  Inst.  32.  a.  (Eldredge  v.  Forrestal,  7  Mass.  253.  Fisk  v.  Eastman,  5  N.  Hamp.240. 
Otis  v.  Parshley,  10  N.  Hamp.403.) 

(d)  1  Inst.  41.  a.     Manning's  case,  8  Pep.  96.  a.    2  Vern.  404. 


[  t  But  though  the  seisin  at  law  of  the  husband  without  actual  entry  will  entitle  the 
wife  to  dower,  (Co.  Lit.  29.  a.  Lit.  s.  681,)  still  this  seisin  as  regards  the  dower  of  women 
married  before  or  on  the  1  Jan.  1834,  must  be  of  a  legal  and  not  an  equitable  estate, 
2  Bro.  C.  C.  630;  2  Atk.  526 ;  Infra,  tit.  12,  ch.  2,  s.  16,  &c] 


Title  VI.     Dower.     Ch.  I.  s.  24—25.  179 

the  land  was  merely  in  transitu,  and  never  rested  in  the  hus- 
band ;  the  grant  and  render  being  one  continued  act.  But  if  the 
land  abides  in  him  for  the  interval  of  but  a  single  moment,  it 
seems  that  the  wife  shall  be  endowed  thereof."  (a)  1 

25.  Sir  J.  Jekyll  has  also  said,  that  a  woman  is  not  entitled  to 
dower  out  of  an  instantaneous  seisin.     The  cognizee  of  a  fine 
is  not  so  seised  as  to  give  his  wife  a  title  to  dower ;  nor 
in  the  *  case  of  a  use,2  has  the  widow  of  a  trustee  any    *  158 
claim   to  dower  from   such  a  momentary  seisin  in  her 
husband,  (b)  f 

(«)  1  Inst.  31.  b.    2  Bl.  Comm.  131.     Broughton  v.  Randall,  Cro.  Eliz.  503. 
(b)  1  Atk.  442. 


1  The  true  question  in  these  cases  is  whether  the  seisin  was  legally  beneficial  to  the 
husband.  If  it  was,  though  for  ever  so  short  a  time,  the  right  of  dower  attaches  to  it. 
But  if  it  was  in  the  husband  only  for  the  purpose  of  transmission  to  another,  and  not 
absolutely,  it  does  not.  The  case  of  Broughton  v.  Randall,  Cro.  El.  503  ;  1  Roper  on 
Husb.  &*Wife,  369,  where  father  and  son  were  hanged  at  the  same  time,  but  one  of 
them  lived  a  moment  longer  than  the  other,  is  an  example  of  the  former.  So  where  A 
conveyed  to  B,  and  B  at  the  same  time  conveyed  the  same  land  to  C,  it  was  held  that 
B's  widow  was  entitled  to  dower.  Stanwood  v.  Dunning,  2  Shepl.  290 ;  Gammon  v. 
Freeman,  1  Redingt.  243.  An  example  of  the  latter  is  where  land  is  conveyed  in  fee, 
and  at  the  same  time  mortgaged,  to  secure  the  purchase-money  either  to  the  grantor  or 
to  a  stranger  who  has  advanced  it.  Clark  v.  Munroe,  14  Mass.  351  ;  Holbrook  v.  Fin- 
ney, 4  Mass.  566  ;  Ballard  v.  Bowers,  10  N.  Hamp.  500  ;  Maybury  v.Brien,  15  Pet.  21. 
[Smith  v.  Stanley,  37  Maine,  11.] 

If  the  husband  aliens  the  land  on  the  day  of  his  marriage,  the  wife  will  still  be  enti- 
tled to  dower.  Stewart  v.  Stewart,  3  J.  J.  Marsh.  48.  And  if  before  the  marriage,  but 
in  contemplation  of  it,  he  should  make  a  fraudulent  conveyance,  whether  absolute  or  in 
mortgage,  for  the  purpose  of  defeating  the  right  of  dower,  it  will  be  no  bar  to  her  right. 
Littleton  v.  Littleton,  1  Dev.  &  Batt.  327  ;  Killinger  v.  Reidenhauer,  6  S.  &  R.  531. 
[Brewer  v.  Connel,  11  Humph.  500.] 

If  the  husband,  before  the  marriage,  in  good  faith  contracts  to  convey  the  land,  it 
shall  be  free  of  dower,  if  it  be  conveyed  accordingly  after  the  marriage.  7  Ves.  436  ; 
14  Ves.  591.  [A  widow  is  not  entitled  to  dower  in  lands  conveyed  away  by  her  hus- 
band before  marriage,  though  the  conveyance  be  fraudulent  and  void  as  against  his 
creditors.     Whithcd  v.  Mallory,  4  Cush.  138.] 

2  The  principle  is  now  settled,  that  the  wife's  right  of  dower  attaches  only  to  the 
beneficial  seisin  of  the  husband.  Therefore  the  wife  of  a  trustee  is  entitled  to  dower  in 
the  trust  estate  no  further  than  the  husband  had  a  beneficial  interest  therein  ;  and  if  she 
attempts  to  recover  it  at  law,  equity  will  restrain  her,  and  punish  her  in  costs.  Hinton 
v.  Hinton,  2  Ves.  631  ;  Noel  v.  Jevon,  2  Freem.  43 ;  4  Kent,  Comm.  43.  See  further, 
post,  ch.  2,  §  25 ;  Small  v.  Procter,  15  Mass.  495.  If  the  husband  is  seised  to  the  use 
of  himself  and  others,  and  his  interest  cannot  be  particularly  ascertained,  and  is  subse- 
quent to  that  of  the  other  parties,  his  wife  cannot  be  endowed  until  the  other  uses  are 
satisfied.     McCaulay  v.  Grimes,  2  G.  &  J.  318. 

[  t  The  observations  in  the  preceding  sections  on  the  legal  seisin  of  the  husband,  now 


180  Title  VI.     Dower.     Ch.  I.  s.  26—27. 

26.  The  last  circumstance  required  to  the  existence  of  an  estate 
in  dower  is  the  death  of  the  husband,  by  which  the  wife's  estate 
is  consummate.1  It  is  generally  said,  that  nothing  but  the  natural 
death  of  the  husband  will  give  a  title  to  dower  ;  though  there  are 
some  authorities  to  prove  that  banishment  by  abjuration  of  the 
realm,  or  by  [act  of]  parliament,  which  is  a  civil  death,  will  have 
the  same  effect,  (a)  2 

27.  With  respect  to  the  persons  capable  of  being  endowed,  all 
women  who  are  natural  born  subjects,  and  have  attained  the 
age  of  nine  years,  are,  by  the  common  law,  entitled  to  dower ; 
although  their  husbands  should  be  but  four  years  old.  And  Lord 
Coke  says,  if  a  man  marries  a  woman  only  seven  years  old,  and 

afterwards  aliens  his  land,  and  the  wife  attains  the  age  of 
159  *     *  nine  years,  and  then  the  husband  dies,  she  shall  be  en- 
dowed ;  for  though  she  was  not  absolutely  dowable  at 
the  time  of  her  marriage,  yet  she  was  conditionally  dowable,  if 

(re)  1  Inst.  33.  b.     132.  b. 


only  apply  in  England  to  the  husbands  of  women  married  before,  or  on  the  1st  day  of 
January,  1334,  for  by  the  late  Statute  3  &4  Will.  4,  c.  105,  sect.  2,  3,  widows  married 
since  that  day.  are  entitled  to  dower  out  of  equitable  estates  ;  the  following  are  the 
words  of  the  act.  That  when  a  husband  shall  die  beneficially  entitled  to  any  land  for 
an  interest  which  shall  not  entitle  his  widow  to  dower  out  of  the  same  at  law,  and  such 
interest,  whether  wholly  equitable,  or  partly  legal  and  partly  equitable,  shall  be  an 
estate  of  inheritance  in  possession,  or  equal  to  an  estate  of  inheritance  in  possession, 
(other  than  an  estate  in  joint-tenancy)  then  his  widow  shall  be  entitled  in  equity  to 
dower  out  of  the  same  land.  Sect.  3.  That  when  a  husband  shall  have  been  entitled 
to  a  right  of  entry  or  action  in  any  land,  and  his  widow  would  be  entitled  to  dower 
out  of  the  same  if  he  had  recovered  possession  thereof,  she  shall  be  entitled  to  dower 
out  of  the  same  although  her  husband  shall  not  have  recovered  possession  thereof; 
provided  that  such  dower  be  sued  for  or  obtained  within  the  period  during  which 
such  right  of  entry  or  action  might  be  enforced.  No  mention  is  made  of  gavelkind 
tenure  in  the  above  act.     See  3  &  4  W.  c.  27.] 

1  Reputation,  in  the  family,  is  prima  facie  evidence  of  the  death  of  the  husband. 
Cochrane  v.  Libby,  6  Shepl.  39.  So,  in  general,  is  the  grant  of  letters  of  administra- 
tion. Thompson  v.  Donaldson,  3  Esp.  63  ;  Succession  of  Hamblin,  3  Eob.  Louis.  R. 
130  ;  Newman  v.  Jenkins,  10  Pick.  515  :  Moons  v.  De  Bernales,  1  Euss.  301.  So  is 
his  absence  for  seven  years,  without  intelligence  concerning  him.  See  1  Greenl.  on 
Evid.  §  41,  550.  As  to  the  presumption  of  survivorship,  where  two  persons  perish  in 
the  same  calamity,  see  1  Greenl.  on  Evid.  §  29,  30. 

[2  Before  the  inchoate  title  of  the  wife  to  dower  becomes  vested  by  the  death  of  the 
husband,  any  regulation  of  it  may  be  made  by  the  legislature,  though  its  operation  is 
in  effect,  to  divest  her  of  her  right  of  dower.  Moore  v.  New  York,  4  Sandf.  Sup.  Ct. 
456.1 


Title  VI.     Bower.     Ch.  I.  s.  27—30.  181 

she  attained  the  age  of  nine  years  before  the  death  of  her  hus- 
band, (a) 

28.  Notwithstanding  the  favor  which  the  common  law  shows 
to  widows,  yet  there  are  some  cases  in  which  women  are  disabled 
from  having  dower. 

29.  Alien  women  are  not  generally  capable  of  acquiring  dower, 
for  the  same  reason  that  an  alien  man  cannot  be  tenant  by  the 
curtesy.1  But  by  the  Lex  Coronce,  an  alien  queen  is  entitled  to 
dower.  And  in  consequence  of  a  petition  from  the  Commons, 
an- act  of  parliament  was  made  in  8  Henry  V.  not  printed  among 
the  statutes,  by  which  all  alien  women  who  from  thenceforth 
should  be  married  to  Englishmen  by  license  from  the  king,  are 
enabled  to  have  dower,  after  their  husbands'  death,  in  the  same 
manner  as  English  women,  (b) 

30.  If  an  alien  woman  be  naturalized  by  act  of  parliament, 
she  then  becomes  entitled  to  dower  out  of  all  the  lands  whereof 
her  husband  was  seised,  during  the  coverture.  And  where  an 
alien  woman  is  created  a  denizen,  she  becomes  entitled  to  dower, 
out  of  all  the  lands  whereof  her  husband  was  seised  at  the  time 
when  she  was  created  a  denizen ;  but  not  out  of  any  lands 
whereof  he  was  seised  before,  and  which  he  had  aliened,  (c)  2 

(«)  1  Inst.  33.  a. 

(b)  Tit.  5.  c.  1.  s.  27.    Jenk.  Cent.  1.  ca.  2.     Rot.  Pari.  vol.  iv.  128.  130. 

(c)  1  Inst.  31.  b.  33.  a.    Menvill's  case,  13  Rep.  23.  — 


1  In  those  of  the  United  States  in  which  an  alien  is  permitted  to  hold  lands,  alien- 
age, whether  of  the  husband  or  wife,  would  be  no  impediment  to  the  title  to  dower. 
See  ante,  tit.  1,  §  37,  note.  In  others  it  is  expressly  enacted,  that  alienage  of  the  wife 
shall  be  no  bar  to  her  title.  Massachusetts,  Kev.  St.  ch.  60,  §  14.  [See  Statute,  1852, 
ch.  29.]  Maine,  Rev.  St.  ch.  95,  §  7  ;  Maryland,  St.  1813,  ch.  100  ;  Michigan,  Rev.  St. 
1838,  p.  265 ;  New  Jersey,  Elmer's  Dig.  p.  143.  See,  also,  Indiana,  Rev.  St.  1843, 
ch.  28,  §  105.  In  New  York,  alienage  of  the  husband  is  no  bar  to  dower,  if  the  wife  be 
an  inhabitant  of  the  State.  N.  York,  Rev.  St.  Vol.  II.  p.  26,  3d  ed.  In  Missouri,  it 
seems  that  alienage  of  either  husband  or  wife  is  no  bar.  Missouri,  Rev.  St.  1845, 
ch.  54,  §  1 ;  Stokes  v.  Fallon,  2  Missouri  R.  32.  See,  also,  New  Hampshire,  Rev.  St. 
1842,  ch.  129,  §  4,  and  ch.  165,  §  3,  and  ch.  205,  §  7 ;  Arkansas,  Rev.  St.  1837,  ch.  52, 
§  2,  and  ch.  7,  §  1  ;  SutlifFu.  Forgey,  1  Cowen,  89;  5  Cowen,  713. 

2  So,  if  she  were  naturalized.    Priest  v.  Cummings,  16  Wend.  617. 

VOL.   I.  16 


182 


CHAP.  II. 


OP   WHAT   THINGS   DOWER   MAY   BE,   AND   NATURE    OF   THIS   ESTATE. 


Sect.     1.  Estates  in  Fee  Si7nj)le. 
3.  Estates  Tail. 

6.  Qualified  or  Base  Fees. 

7.  Estates  in   Coparcenary  and 

Common. 

8.  Remainders  and  Reversions 

after  Estates  for  Years. 
10.  Equities    of  Redemption  of 
some  kind. 

Incorporeal  Hereditaments. 

Where  a  Widow  has  an  Elec- 
tion. 

What  Things  are  not  liable  to 
Doicer. 

14.  Estates  in  Joint-tenancy. 

15.  Estates  held  by    Copartners 
in  Trade. 


11. 
12. 


13. 


Sect.  17.  Estates  not  of  Inheritance. 
18.    Wrongful  Estates. 
20.  Lands  assigned  for  Doicer. 
24.   Uses,  Trusts,  and  Mortgages. 

26.  Where  Dower  and    Curtesy 

cease  toith  the  Estate. 

27.  Nature  of  this  Estate. 

29.  The  Dowress  entitled  to  Em- 

blements. 

30.  Restrained  from  Alienation. 
32.  And  from  Waste. 

34.  Not  subject  to  her  Husband's 
•  Incumbrances. 

35.  In  some  Cases  Dower  depends 

upon  the  Election  of  third 
Persons. 


Section  1.  A  woman  is  entitled  to  dower  out  of  all 
the  lands  whereof  her  husband  was  seised  in  fee  simple, 
at    auy   time    during    the    coverture  ;  f    and   also   of    all    the 

[t  This  now  relates  only  to  women  married  before,  or  on  the  1st  day  of  January, 
1834,  Stat.  3  &  4  Will.  4,  c.  105,  s.  14,  for  by  that  statute  it  is  enacted, — S.  4.  That  no 
widow  shall  be  entitled  to  dower  out  of  any  land  which  shall  have  been  absolutely  dis- 
posed of  by  her  husband  in  his  lifetime  or  by  his  will. 

Sect.  5.  That  all  partial  estates  and  interests,  and  all 'charges  created  by  any  disposi- 
tion or  will  of  a  husband,  and  all  debts,  incumbrances,  contracts  and  engagements,  to 
which  his  land  shall  be  subject  or  liable,  shall  be  valid  and  effectual  as  against  the  right 
of  his  widow  to  dower. 

Sect.  6.  That  a  widow  shall  not  be  entitled  to  dower  out  of  any  land  of  her  husband 
when  in  the  deed  by  which  such  land  was  conveyed  to  him,  or  by  any  deed  executed 
by  him.  it  shall  be  declared  that  his  widow  shall  not  be  entitled  to  dower  out  of  such 
land. 

Sect.  7.  That  a  widow  shall  not  be  entitled  to  dower  out  of  any  land  of  which  her 
husband  shall  die  wholly  or  partially  intestate,  when  by  the  will  of  her  husband  duly 
executed  for  the  devise  of  freehold  estates,  he  shall  declare  his  intention  that  she  shall 
not  be  entitled  to  dower  out  of  such  land,  or  out  of  any  of  his  land. 

Sect.  8.  That  the  right  of  a  widow  to  dower  shall  be  subject  to  any  conditions,  re- 
strictions, or  directions,  which  shall  be  declared  by  the  will  of  her  husband,  duly  exe- 
cuted as  aforesaid. 


Title  VI.     Dower.     Cm  II.  5.  1.  183 

profits  1  arising  out  of  those  lands,  *  such  as  mines,  min-  *  161 
erals,  &c.,  and  in  a  modem  case,  the  Court  of  Common 
Pleas  certified  to  the  Lord  Chancellor,  that  dower  was  due  of 
mines  of  coal  and  lead,  wrought  during  the  coverture ;  whether 
by  the  husband,  or  by  lessees  for  years,  paying  pecuniary  rents, 
or  rents  in  kind  ;  and  whether  the  mines  were  under  the  husband's 
own  land,  or  had  been  absolutely  granted  to  him,  to  take  the 
whole  stratum  in  the  land  of  others.  But  that  dower  was  not 
due  of  mines  or  strata  unopened,  whether  under  the  husband's 
land  or  the  soil  of  others,  (a) 

(a)  Stoughton  v.  Leigh,  1  Taunt.  409.    (See post,  §  32.) 

Sect.  9.  That  where  a  husband  shall  devise  any  land  out  of  which  his  widow  would 
be  entitled  to  dower  if  the  same  were  not  so  devised,  or  any  estate  or  interest  therein, 
to  or  for  the  benefit  of  his  widow,  such  widow  shall  not  be  entitled  to  dower  out  of 
or  in  any  land  of  her  said  husband,  unless  a  contrary  intention  shall  be  declared  by  his 
will. 

Sect.  10.  That  no  gift  or  bequest  made  by  any  husband  to  or  for  the  benefit  of  his 
widow,  of  or  out  of  his  personal  estate,  or  of  or  out  of  any  of  his  land,  not  liable  to 
dower,  shall  defeat  or  prejudice  her  right  to  dower,  unless  a  contrary  intention  shall  be 
declared  by  his  will. 

By  sect.  11.  It  is  provided  that  nothing  therein  contained  shall  prevent  any  Court 
of  Equity  from  enforcing  any  covenant  or  agreement,  entered  into  by  or  on  the  part  of 
any  husband,  not  to  bar  the  right  of  his  widow  to  dower,  out  of  his  lands  or  any  of 
them. 

And  by  sect.  12.  It  is  enacted,  that  nothing  therein  contained  shall  interfere  with  any 
rule  of  Equity,  or  of  any  Ecclesiastical  Court,  by  which  legacies  bequeathed  to  widows, 
in  satisfaction  of  dower,  are  entitled  to  priority  over  other  legacies.] 

1  By  the  law  of  Massachusetts,  a  widow  is  not  dowable  of  wild  lands,  not  connected 
with  a  cultivated  farm,  nor  used  for  procuring  fuel,  or  timber,  for  the  purposes  of  the 
farm ;  nor  of  lands  which  were  wild  when  sold  by  the  husband,  but  have  since  been 
reduced  to  a  state  of  cultivation.  Massachusetts,  Rev.  St.  ch.  60,  §  12 ;  Conner  v. 
Shepherd,  15  Mass.  164;  White  v.  Willis,  7  Pick.  143;  Webb  v.  Townsend,  1  Pick. 
21 ;  Shattuck  v.  Gragg,  23  Pick.  88.  So  is  the  law  of  Maine,  Rev.  St.  ch.  95,  §  2 ; 
Mosher  v.  Mosher,  3  Shepl.  371  ;  Kuhn  v.  Kaler,  2  Shepl.  409.  In  New  Hampshire,  by 
Rev.  St.  1842,  ch.  165,  §  4,  the  widow  is  not  dowable  unless  the  lands,  while  owned  by 
the  husband,  were  "  in  a  state  of  cultivation,"  or  wei-e  used  or  kept  as  a  wood  or  tim- 
ber lot,  and  occupied  with  some  farm  or  tenement  owned  by  him.  And  lands  are 
considered  in  a  state  of  cultivation  when  they  are  not  in  their  original  state  by  nature, 
or,  after  having  been  cleared  and  worked,  have  not  reverted  to  a  similar  state.  John- 
son v.  Perley,  2  N.  Hamp.  R,  56.     [See  also  Meserve  v.  Mescrve,  19  N.  H.  240.] 

[In  Georgia  a  widow  is  entitled  to  dower  in  the  wild  and  uncultivated  lands  of  which 
her  husband  was  seised  during  coverture,  at  common  law,  and  of  such  as  he  may  be 
seised  and  possessed  at  the  time  of  his  death,  under  the  statute.  Chapman  v.  Schwe- 
der,  10  Geo.  321.  Under  the  ordinance  of  1787,  a  widow  is  entitled  to  dower  as  at 
common  law,  in  all  the  lands  of  which  her  husband  was  seised  during  coverture.  May 
v.  Rumney,  1  Mann.  (Mich.)  1.] 


184  Title  VI.  %>ower.     Ch.  II.  5.  2—6. 

2.  A  woman  is  dowable  of  the  profits  of  a  mill,  a  park,  a  dove- 
house,  or  fishery.  So  of  the  profits  of  courts,  fines,  and  heriots, 
and  also  of  shares  in  the  navigation  of  the  River  Avon,  (a) 

3.  A  woman  is  also  entitled  to  dower  out  of  all  estates  whereof 
her  husband  is  seised  in  tail,  general  or  special,  if  her  issue  be 
capable  of  inheriting  them.  And  Lord  Coke  says,  albeit  the 
wife  be  a  hundred  years  old,  or  that  the  husband,  at  his  death, 
was  but  four  or  seven  years  old,  so  as  she  had  no  possibility  to 
have  issue  by  him ;  yet  seeing  the  law  saith,  that  if  the  wife  be 
above  the  age  of  nine  years  at  the  death  of  her  husband,  she 
shall  be  endowed,  and  that  women  in  ancient  times  have  had 
children  at  that  age,  whereunto  no  woman  doth  now  attain,  the 
law  cannot  judge  that  impossible,  which  by  nature  was  possible. 
And  for  the  husband's  being  of  such  tender  years,  he  hath  habi- 
tum,  though  he  hath  not  potentiam  at  that  time ;  and,  therefore 
his  wife  shall  be  endowed,  (b) 

4.  Dower  is  an  incident  so  inseparably  annexed  to  an 
162  *  estate  *  tail,  that  it  cannot  be  restrained  by  any  proviso  or 
condition  whatever.  And  although  the  estate  tail  should 
determine  by  the  death  of  the  husband,  without  issue  capable  of 
inheriting  it,  yet  the  wife  shall  be  endowed ;  because  dower  is  a 
condition  tacite  annexed  to  the  gift  of  every  estate  tail,  (c) 

5.  Where  a  tenant  in  tail  covenanted  to  stand  seised  to  the 
use  of  himself  for  life,  remainder  to  the  use  of  his  eldest  son  in 
tail ;  and  afterwards  married  and  died ;  it  was  resolved  that  his 
widow  should  be  endowed  ;  because  when  a  tenant  in  tail  limits 
an  estate  for  his  own  life,  he  has  executed  all  the  power  he  had ; 
and  the  remainder  is  merely  void  ;  so  that  he  continues  tenant  in 
tail  as  before,  (d) 

6.  A  woman  is  dowable  of  a  qualified  fee,  as  long  as  it  con- 
tinues ;  therefore,  in  the  case  of  a  limitation  to  A  and  his  heirs, 
tenants  of  the  manor  of  Dale,  the  widow  of  A  would  be  entitled 
to  dower.  It  is  the  same  of  a  base  fee,  so  that  if  a  tenant  in  tail 
conveys  his  estate  by  fine  to  A  and  his  heirs,  by  which  he  ac- 
quires an  estate  to  him  and  his  heirs,  as  long  as  the  tenant  in 
tail  has  heirs  of  his  body,  the  wife  of  A  will  be  entitled  to  dower 
against  her  husband's  heirs,  (e) 

(a)  1  Inst.  32.  a.    1  Ves.  jun.  652.         (J)  Lit.  s.  53.     1  List.  40.  a. 

(c)  Lit.  s.  53.     llnst.  224.  a.     Id.  31.  b.     Tit.  5.  c.  2. 

(d)  Blithman's  case,  Cro.  Eliz.  280.     Tit.  2.  C.  2.  s.  1. 

(e)  Tit.  1.    Plowd.  557. 


Title  VI.     Bower.      Ch,  II.  s.  7—10.  185 

7.  Widows  are  dowable  of  estates  held  in  coparcenary  and  in 
common;  of  which  an  account  will  be  given  under  those  titles.1 

8.  A  woman  is  not  entitled  to  dower  out  of  an  estate  in  re- 
mainder or  reversion  [expectant  on  an  estate  of  freehold,  because 
the  husband  has  no  seisin.2f  But  a  woman  is  dowable  of  a 
reversion  expectant  on  a  term  for  years,  because  the  husband  is 
seised  of  the  freehold.3  (a) 

9.  Thus,  if  a  man  before  his  marriage  makes  a  lease  for  years, 
reserving  rent,  his  wife  will  be  entitled  to  a  third  of  the  land  for 
her  dower  ;  and  also  to  a  third  of  the  rent  as  incident  to  the  re- 
version. If  no  rent  be  reserved  on  the  lease,  then  although  the 
widow  may  recover  a  third  of  the  reversion,  yet  the  judgment 
will  be  with  a  cesset  executio  during  the  term.  In#some  cases,  a 
Court  of  Equity  will  assist  the  dowress  in  removing  the  term ; 
and  in  others  not ;  of  which  an  account  will  be  given  in  a  sub- 
sequent title,  (b) 

10.  Where  lands  are  mortgaged  for  a  term  of  years  only,  a 
woman  will  be  entitled  to  dower  out  of  the  equity  of 
redemption.     *  But  if  lands  are  mortgaged  in  fee  before     *  163 
the  marriage,  the  wife  will  not  be  entitled  to  dower  at 

law,  because  the  husband  has  not  the  legal  estate.^  4  (c) 

(«)  1  Inst.  32.  a.  (h)  1  Inst.  32.  a.  (c)  Tit.  15.  c.  3. 

[tThe  law  remains  unaltered  by  the  late  act  3  &  4  Will.  4,  c.  105,  as  to  estates  in 
reversion.] 

[|  Vide  supra,  ch.  1,  s.  25,  note.| 

1  But  the  widow  is  bound  by  a  partition  made  by  her  husband,  or  by  process  of 
law,  which  is  valid  as  against  him ;  and,  therefore,  must  take  her  dower  in  the  part 
thus  assigned  to  the  husband  or  his  heirs  in  severalty.    Potter  v.  Wheeler,  13  Mass.  504. 

2  But  where  the  reversioner,  in  such  case,  mortgaged  in  fee,  the  mortgagee  was  held 
estopped  to  deny  his  seisin,  in  a  writ  of  dower  brought  against  him  by  the  widow  of 
the  reversioner.     Nason  v.  Allen,  6  Greenl.  243. 

3  Blood  v.  Blood,  23  Pick.  80;  Otis  v.  Parshley,  10  N.  Hamp.  403  ;  Dunham  v. 
Osborn,  1  Paige,  634;  Blow  v.  Maynard,  1  Leigh,  30;  Fisk  v.  Eastman,  5  N.  Hamp. 
240  ;  [Young  v.  Tarbell,  37  Maine,  509 ;  Hastings  v.  Stevens,  9  Foster  (N.  H.)  564  ; 
Henry's  case,  4  Cush.  257  ;  Weir  v.  Humphries,  4  Ire.  Eq.  50.] 

4  This  doctrine  of  the  common  law  was  abrogated  in  England,  by  Stat.  3  &  4  W.  4, 
c.  105,  by  whicli  the  wife's  right  of  dower  is  attached  to  the  equitable  as  well  as  the 
legal  estates  of  the  husband.     See  ante,  ch.  1,  s.  25,  note. 

In  most,  if  not  all,  of  the  United  States,  the  legal  estate  is  regarded  as  still  in  the 
mortgagor,  as  to  all  persons  except  the  mortgagee  and  his  assigns  ;  and,  therefore,  the 
wife  is  held  dowable  at  law,  against  all  persons  claiming  under  the  husband,  except 
those  claiming  under  a  mortgage  deed,  made  prior  to  the  marriage;  and  this,  whether 
the  mortgage  was  for  years  or  in  fee.    And  as  against  such  prior  mortgagee  and  his 

16* 


186  Title  VI.     Bower.     Ch.  II.  s.  11—12. 

11.  A  widow  is  dowable  of  several  incorporeal  hereditaments ; 
such  as  advowsons,  tithes,  commons,  offices,  franchises,  and 
rents ;  as  will  be  shown  under  those  respective  titles ;  [but  she  is 
not  entitled  to  dower  out  of  a  personal  annuity  granted  to  her 
husband  and  his  heirs.]  (a) 

12.  There  are  some  cases  in  which  a  widow  has  a  right  of 
election,  as  to  the  property  out  of  which  she  is  dowable.  Thus, 
if  the  husband  exchanges  his  lands  for  others,  his  widow  shall 
have  her  election  to  be  endowed,  either  of  the  lands  given,  or  of 
those  taken,  in  exchange ;   because  her  husband  was  seised  of 

{a)  Stat.  3  &  4  Will.  4.  c.  105.  s.  1.     Title  28.  c.  2.  s.  16. 

assigns,  she  is  dowable  in  Equity.  And  though  she  joined  with  her  husband  in  a  subse- 
quent mortgage,  releasing  her  claim  of  dower,  yet  this  release  enures  to  the  benefit  of 
the  mortgagee  and  his  assigns  only,  and  not  to  a  stranger.  Smith  r.  Eustis,  7  Greenl. 
41.  As  against  the  mortgagee,  in  such  case,  her  remedy  is  by  bill  in  Chancery,  upon 
payment  of  her  just  proportion  of  the  sum  due  upon  the  mortgage;  or,  if  her  husband 
were  the  grantee  of  a  part  only  of  a  large  tract  previously  under  mortgage,  then  upon 
payment  of  her  just  proportion  of  the  mortgage  money,  according  to  the  relative  value 
of  the  two  parcels  of  land.  And  the  proportion  payable,  in  that  case,  by  the  husband's 
part  of  the  land,  is  such  proportion  as  the  value  of  that  parcel  bears  to  the  value  of  the 
whole  tract ;  and  of  the  sum  thus  found,  the  widow  must  pay  that  proportion  which  the 
present  value  of  an  annuity  for  her  life,  equal  to  the  income  of  her  dower,  bears  to  the 
value  of  the  whole  parcel  conveyed  to  her  husband.  Carll  v.  Butman,  7  Greenl.  102  : 
[Niles  v.  Nye,  13  Met.  135 ;  Mantz  v.  Buchanan,  1  Md.  Ch.  Decis.  202  ;  Chew  v. 
Farmer's  Bank,  9  Gill.  361.]  And  see  Cass  v.  Martin,  6  N.  Hamp.  25.  And  where, 
as  in  the  former  case,  she  joins  with  her  husband  in  a  mortgage,  releasing  her  right  of 
dower,  and  she  is  admitted  to  her  dower  in  Equity,  the  proportion  of  the  mortgage 
debt  which  she  is  to  pay,  is  adjusted  according  to  the  value  of  her  life-estate  in  the  land 
assigned  for  dower,  compared  with  the  value  of  the  residue  of  the  land,  including  the 
reversion  in  the  part  so  assigned  to  her.  Van  Vronker  v.  Eastman,  7  Met.  157.  See 
further,  Russell  v.  Austin,  1  Paige,  192.  If  the  premises  are  sold  under  a  mortgage  in 
which  the  wife  has  joined  with  her  husband,  she  is  still  entitled,  in  Equity,  to  claim  her 
share  in  the  surplus  proceeds,  as  for  her  dower.  But  if  the  husband  purchased  the 
land,  giving  to  the  vendor,  at  the  same  time,  a  mortgage  to  secure  the  purchase-money, 
and  afterwards  he  releases  his  equity  to  the  mortgagee,  the  wife's  right  of  dower  is 
entirely  gone  ;  for  though  the  debt  was  paid  by  the  release,  yet  by  the  same  act,  uno 
Jlatu,  the  title  became  absolutely  vested  in  the  mortgagee,  without  leaving  a  beneficial 
seisin  for  a  moment  in  the  husband.  Jackson  v.  Dewitt,  6  Cowen,  316.  See  4  Kent, 
Comm.  43—45,  and  cases  there  cited ;  Gibson  v.  Crehore,  5  Pick.  146 ;  Barker  v.  Parker, 
17  Mass.  564.     See  Law  Reporter  for  July,  1849,  Vol.  II.  p.  165,  N.  S. 

Where  there  are  successive  mortgages,  the  first  of  which  is  made  to  secure  the  pur- 
chase-money, by  the  husband  alone,  and  the  second  is  for  another  debt,  in  which  the 
wife  joins,  releasing  her  dower ;  and  the  husband  afterwards  ^ays  off  the  first  mort- 
gage, the  wife  is  entitled  to  her  dower,  subject  to  the  second  mortgage.  Walker  v. 
Griswolcl,  6  Pick.  416. 

If  lands  are  sold  by  the  husband,  with  the  wife's  release  of  dower,  she  is  held  entitled 
in  equity  to  a  part  of  the  fund,  in  lieu  of  dower.  Maccubbin  v.  Cromwell,  2  H.  &  Gill, 
243. 


Title  VI.     Dower.     Ch.  II.  s.  12—15.  187 

both  during  the  coverture.1  And  there  ]  are  some  other  cases 
where  the  widow  has  the  right  of  election,  which  will  be  stated 
hereafter,  f  (a) 

13.  Having  enumerated  the  different  kinds  of  property  which 
are  liable  to  dower,  I  shall  now  examine  what  things  are  not 
subject  to  this  claim.2 

14.  Estates  held  with  other  persons  in  joint-tenancy  are  not 
subject  to  dower,  the  reason  of  which  will  be  given  under  that 
title,  (b) 

(15.  Estates  held  by  partners  may  or  may  not  be  liable  to 
dower,  according  to  the  circumstances  of  the  case.  It  is  a  well- 
established  rule  that  neither  of  the  partners  can  have  an  ultimate 
and  beneficial  interest  in  the  capital  stock  or  property,  until  the 
partnership  debts  are  paid,  and  the  account  settled.  Whenever, 
therefore,  real  estate  is  purchased  as  part  of  the  capital,  whether 
by  the  form  of  the  conveyance  the  legal  estate  vests  in  them  as 
joint  tenants  or  as  tenants  in  common,  it  vests  in  them  and  their 
respective  heirs  in  trust  for  the  purposes  of  the  partnership,  until 
those  purposes  are  accomplished.  Until  then,  the  land  has  in 
equity  all  the  attributes  of  personal  property,  held  in  partnership 
and  in  trust ;  and  the  widow  of  a  deceased  partner  cannot  have 
dower,  nor  can  the  heir  take  by  descent,  until  the  claims  of  the 
partnership  creditors,  and  of  the  surviving  partner,  are  adjusted 
and  settled.3) 

(a)  Co.  Lit.  31.  b.     Perk.  s.  319.     F.  N.  B.  149.  n. 

(b)  Stat.  3  &  4  Will.  4.  c.  105.  s.  2.     (Maybury  v.  Brien,  15  Pet.  21.) 

[  t  See  Stat.  3  &  4  Will.  4,  c.  105,  s.  9,  10,  supra,  p.  160,  note.] 

1  [The  word  "exchange"  used  in  the  Eev.  Stat,  of  New  York,  in  exclusion  of  the 
wife  from  dower  in  lauds  exchanged  by  her  husband,  has  the  common-law  meaning, 
and  there  must  be  a  mutual  grant  of  equal  interests  in  the  respective  parcels  of  land, 
the  one  in  consideration  of  the  other.    Wilcox  v.  Randall,  7  Barb.  Sup.  Ct.  633.] 

[ 2  A  widow  is  not  entitled  to  dower  in  lands  conveyed  away  by  her  husband  before 
marriage,  although  such  conveyance  was  fraudulent  and  void  as  against  his  creditors. 
Whithed  v.  Mallory,  4  Cush.  138.  Where  the  grantor  of  an  estate  on  condition  enters 
for  condition  broken,  the  widow  has  no  dower.  Beardslee  v.  Bcardslcc,  5  Barb.  Sup. 
Ct.  324.  A  lease  of  lands  for  ninety-nine  years,  renewable  forever,  is  a  chattel  interest, 
and  not  an  estate  in  lands  in  which  dower  can  be  claimed.  Spangler  v.  Stanler,  1  Md. 
Ch.  Decis.  36.] 

3  3  Kent,  Comm.  37—39  ;  Collyer  on  Partnership,  by  Perkins,  §  135,  136,  154,  155, 
156,  and  cases  there  cited;  Dyer  v.  Clark,  5  Mete.  562,  579,  580  ;  Howard  v.  Priest, 
Ibid.  582;  Burnside  v.  Merrick,  4  Mete.  537  :  Sigourney  v.  Munn,  7  Conn.  11  ;  Hoxic 
v.  Carr,  1  Sumn.  173;  Phillips  v.  Phillips,  1  My.  &  K.  649;  Crawshay  v.  Maule,  1 
Swanst.  495,  522  ;   Broom  v.  Broom,  3  My.  &  K.  443;   1  Story  on  Eq.  §  674  ;    2  Ibid. 


188  Title  VI.     Dower.     Ch.  II.  s.  16—19. 

(16.  But  though  the  estate  were  thus  purchased  by  the  part- 
ners, and  with  partnership  funds,  yet  the  circumstances  may 
have  been  such  as  to  preclude  such  implied  trust,  and  to  show 
that  they  intended  to  hold  the  property  to  their  respective, 
separate  and  private  uses ;  as,  where  there  is  a  provision  to  that 
effect  in  the  articles  of  partnership,  or  an  express  agreement  to 
the  like  effect  at  the  time  of  the  purchase,  or  where  their  re- 
spective proportions  of  the  purchase-money  are  charged  to  the 
respective  partners  in  their  several  accounts  with  the  firm,  thereby 
making  a  division  and  distribution  of  so  much  of  the  capital 
fund,  without  injury  to  the  rights  of  creditors.  In  such  cases, 
the  wife  will  be  entitled  to  dower.1) 

17.  An  estate  in  dower  is  a  continuation  of  the  husband's 
estate,2  and  is,  therefore,  only  incident  to  estates  of  inheritance 
not  to  estates  which  the  husband  holds  for  his  life.  And  it  is 
not  only  necessary  that  the  husband  should  have  an  estate  of 
inheritance,  to  entitle  the  wife  to  dower,  but  the  estate  must  also 
be  simul  et  semel  in  him.3  (a) 

18.  A  widow  is  not  dowable  of  a  wrongful  estate.  So  that  if 
a  tenant  in  tail  discontinues  in  fee,  afterwards  marries,  disseises 
the  discontinuee  and  dies  seised,  his  wife  .jhall  not  have  dower ; 
because  the  issue  is  remitted  to  the  ancient  entail ;  and  the  estate 
which  the  husband  had  during  the  coverture,  was  wrongful,  (b) 

19.  So  where  a  man   having  title  to  lands,  enters   and  dis- 

(«)  Hooker  ».  Hooker,  tit.  16.  c.  6.    Bates  v.  Bates,  tit.  32.  c.  24. 
(b)  1  Inst.  31.  b.     Fitz.  N.  B.  149.     Tit.  29.  c.  1. 


§  1207,  1207  a.  If  lands  so  held  in  partnership  are  sold  to  one  having  actual  or  con- 
structive notice  that  they  belong  to  the  partnership  stock,  they  will  be  chargeable  in 
his  hands  with  the  existing  partnership  debts,  though  he  had  no  notice  that  any  such 
debts  in  fact  existed.  Hoxie  v.  Carr,  supra.  [Goodburn  v.  Stevens,  5  Gill,  1  ;  S.  C. 
1  Md.  Ch.  Decis.  420.] 

1  Dyer  v.  Clark,  5  Met.  562,  579 ;  3  Kent,  Comm.  37—39 ;  Story  on  Part.  §  93,  94  : 
Greene  v.  Greene,  1  Ohio  R.  244. 

2  The  title  in  dower,  as  it  arises  by  operation  of  law  upon  the  death  of  the  husband, 
falls  properly  under  the  head  of  title  by  descent.  See  4  Kent,  Com.  373,  note  a ;  1  Inst. 
18,  b.  note  106  ;  2  Am.  Law  Mag.  39 — 67  ;  Pemberton  v.  Hicks,  1  Binn.  1  ;  [Lawrence 
v.  Brown,  1  Selden,  N.  Y.  394.] 

3  Hence  it  is  that  the  widow  is  not  dowable  of  an  estate  pour  auter  vie ;  for  it  was  not 
descendible,  by  the  common  law,  but  belonged,  by  right  of  occupancy,  to  him  who  first 
entered  after  the  death  of  the  tenant  for  another's  life,  and  is  now  made  distributable, 
as  part  of  the  personalty,  by  statutes,  both  in  England  and  America.  Ante,  tit.  3,  ch.  1, 
§  43—46 ;  Park  on  Dower,  48,  49  ;  Gillis  v.  Brown,  5  Cowen,  388. 


Title  VI.     Dower.     Ch.  II.  s.  19—23.  189 

seises  the  tenant,  and  dies  seised,  and  his  heir  enters,  by  which 
he  is  remitted  to  the  ancient  right,  the  widow  of  the  disseisor 
is  not  entitled  to  dower,  because  her  husband's  estate  was 
wrongful.'  (a) 

*20.  A  widow  is  not  dowable  of  lands  assigned  to  *164 
another  woman  in  dower.  Thus  if  the  ancestor  of  a 
married  man  dies,  and  he  endows  the  widow  of  such  ancestor 
of  one  third  of  the  lands  which  descended  to  him,  and  dies; 
his  widow  will  only  be  entitled  to  a  third  of  the  remaining  two 
thirds;  for  it  is  a  maxim  of  law,  as  ancient  as  Glanville,  that 
dos  de  dote  peti  non  debit.  The  reason  of  which  is,  that  when 
the  heir  endows  the  widow  of  the  ancestor,  that  defeats  the 
seisin  which  he  acquired  by  the  descent  of  the  lands  to  him.  So 
that  the  widow  is  in  of  the  estate  of  her  husband,  and  the  heir  is 
considered  as  having  never  been  seised  of  that  part.2  (b) 

21.  In  the  same  manner,  if  a  woman  on  whom  lands  descend 
endows  her  mother,  afterwards  marries,  has  issue,  and  dies  in 
the  lifetime  of  her  mother ;  her  husband  will  not  be  entitled  to 
an  estate  by  the  curtesy  in  those  lands  whereof  the  mother  was 
endowed ;  because  the  daughter's  seisin  was  defeated  by  the 
endowment,  (c) 

22.  The  rule  of  dos  de  dote  is  only  applied  where  dower  is 
actually  assigned ;  for  if  no  dower  be  assigned,  it  does  not  take 
place.3 

23.  Lands  subject  to  a  title  to  dower  were  devised  to  a  person 
in  fee ;  he  died,  leaving  a  widow,  who  sued  at  law  for  dower 
and  recovered  a  third  part  of  the  whole  ;  without  any  regard  to 
the  title  of  dower  in  the  widow  of  the  testator.  (The  devisor's 
widow  also  sued  at  law  for  her  dower,  while  the  other  action 
was  pending,  but  did  not  proceed  any  further  therein.     After- 

(«)  Idem.        (6)  1  Inst.  31.  a.     Bustard's  case,  4  Rep.  122.     Glanv.  Lib.  6.  c.  17. 
(c)  Bro.  Ab.  Curtesy,  10. 

1  But  where  the  tenant  claims  under  the  husband's  seisin,  he  is  estopped  from  deny- 
ing the  seisin  of  the  husband,  or  from  setting  up  a  better  title  in  a  third  person.  Ban- 
croft v.  White,  1  Caines,  185  ;  Kimball  v.  Kimball,  2  Greenl.  226  ;  and  see  Nason  v. 
Allen,  6  Greenl.  243,  supra,  §  8,  note  (2)  ;  [Pledger  v.  Ellerbe,  6  Kich.  Eq.  266.  But 
he  may  deny  that  the  seisin  was  such  as  gave  her  a  right  to  dower.  Gammon  v.  Free- 
man, 31  Maine,  (1  Red.)  243.] 

2  See  post,  $  28,  (1.)     [Manning  v.  Laboree,  33  Maine,  (3  Red.)  343.] 
[3  Elwood  v.  Klock,  13  Barb.  Sup.  Ct.  50.] 


190  Title  VI.     Dower.     Ch.  II.  s.  23—25. 

wards  the  devisee's  widow  filed  her  bill  in  Chancery  against  the 
devisor's  executors  and  his  widow,  to  compel  the  executors  to 
pay  off  an  outstanding  mortgage,  and  to  enjoin  the  widow's 
action  for  dower,  on  the  ground  that  certain  estates  devised  to 
her  were  intended  in  lieu  of  dower.)  The  Lord  Keeper  held, 
that  as  the  testator's  widow  had  not  recovered  dower,  it  was  to 
be  laid  out  of  the  case ;  and  that  the  dower  of  the  devisee's 
widow  was  not  to  be  looked  upon  as  dos  de  dote,  (a) 

24.  A  widow  was  never  allowed  dower  of  a  use ;  nor  is  she 
now  entitled  to  dower  out  of  a  trust  estate  ;i  and  where  an 
estate  is  conveyed  to  a  man  by  way  of  mortgage,  it  is  not  subject 
to  dower,  (b) 

(25.  So  far  as  dower  is  a  legal  right,  and  is  to  be  pursued  by 
legal  remedies,  it  is  obvious,  that  the  estates  in  respect  of  which 
it  is  claimed,  can  be  such  only  as  have  existence  in  the  contem- 
plation of  a  court  of  law.  It  never  could  become  a  question, 
therefore,  whether  the  wife  of  a  cestui  que  trust  could  have  a  title 
of  dower  at  law.  But  a  question  which  has  been  the  subject  of 
much  agitation,  and  upon  which,  though  now  settled,  the  rule 
was  for  a  long  time  in  a  vacillating  state,  was  whether  Courts  of 
Equity,  having  in  most  cases  applied  the  rules  and  incidents  of 
legal  estates  to  the  ownership  of  the  trust,  should  or  should  not 
follow  that  principle  in  relation  to  dower,  and  give  the  wife  of  a 
cestui  que  trust  an  equitable  equivalent  for  her  dower  at  law,  out 
of  the  trust  estate.)  (c) 

(a)  HitchenS  v.  Hitchens,  2  Vera.  403.       (6)  Tit.  11, 12,  15.       (c)  Park  on  Dower,  123, 124. 


1  But  the  widow  of  a  trustee  was  dowable,  by  the  common  law ;  though  Equity  would 
restrain  her  by  injunction,  if  he  had  no  beneficial  interest  in  the  land.  4  Kent,  Comm. 
42  ;  Perk,  sec"  392  ;  1  Eoper,  Husb.  &  Wife,  353  ;  1  Roll.  Abr.  678,  pi.  36.  After  the 
Statute  of  Uses,  27  H.  8,  the  widow  of  the  feoffee  to  uses  could  not  be  endowed,  because 
he  had  but  an  instantaneous  seisin.  Stearns  on  Keal  Actions,  [281.]  And  it  is  now 
held  that  the  wife  of  a  trustee  is  not  dowable.  in  Equity,  of  the  trust  estate.  Robison 
v.  Codman,  1  Sumn.  129 ;  Powell  v.  Monson,  3  Mason,  347,  364,  365 ;  Cooper  v.  Whit- 
ney, 3  Hill,  101 ;  Cowman  v.  Hall,  3  Gill  &  Johns.  398  ;  Noel  v.  Jevon,  2  Freem.  43  ; 
Bevan  v.  Pope,  Ibid.  71.  In  Pennsylvania,  it  has  been  held  otherwise.  Shoemaker  v. 
Walker,  2  S.  &  R.  556.  In  most  of  the  United  States,  the  case  of  trusts  is  expressly 
provided  for  by  statute,  the  courts  being  empowered,  in  some  States  only  in  cases  of 
trusts  created  by  will,  but  in  others,  in  all  cases,  to  appoint  new  trustees  upon  the 
death,  refusal,  or  resignation  of  any  person  holding  lands  in  trust ;  and  the  estate  being 
declared  to  be  vested  in  the  new  trustees  thus  appointed.  In  such  cases,  the  title  of  thft 
wife  to  dower  seems  necessarily  to  be  excluded. 


Title  VI.     Bower.     Ch.  II.  s.  25.  191 

(Before  the  statute  of  uses,  the  Courts  of  Equity  r  although,  in 
many  cases,  they  made  the  estate  of  the  cestui  que  use  subject  to 
the  incidents  of  legal  estates,  yet,  for  some  reasons  which  can 
now  only  be  conjectured,  did  not  think  fit  to  give  dower  of  an 
use.  Perhaps  the  courts,  considering  such  interests  only  as  arose 
by  contract  the  proper  subjects  of  their  jurisdiction,  looked  upon 
dower  as  a  right  arising  solely  by  implication  of  law,  and,  there- 
fore, not  within  the  pale  of  equitable  cognizance.  Chief  Baron 
Gilbert  states  as  a  reason,  that  the  chancery  would  not  allow  the 
feoffors  to  be  seised  to  anybody's  use  but  those  that  were  par- 
ticularly named  in  the  trust ;  and  this  does  not  seem  altogether 
improbable,  looking  at  the  use,  as  Courts  of  Equity  did  then 
look  at  it,  as  the  creation  of  the  parties,  and,  therefore,  to  be 
solely  governed  by  their  expressed  intent.  However  this  may  be, 
when,  in  consequence  of  the  construction  which  had  been  put 
upon  the  statute  of  uses,  chancery  trusts  had  been  introduced  in 
practice,  conveyancers,  regarding  them  as  equivalent  to  uses  be- 
fore the  statute,  and  governed  by  the  same  rules,  adopted  the 
plan  of  putting  the  legal  estate  in  trustees,  in  cases  where  it  was 
an  object  to  avoid  the  attachment  of  a  title  of  dower,  and  the 
efficacy  of  this  mode  was  so  little  doubted  of,  that  it  became  a 
very  general  practice.  Here  arose  the  difficulty ;  for,  in  the  mean- 
time, the  doctrine  of  trusts  had  become  the  subject  of  progres- 
sive consideration  in  Courts  of  Equity,  and  they  had  by  degrees 
formed  a  system  of  equitable  jurisdiction,  with  regard  to  the 
estate  in  trust,  in  which  they  had  been  chiefly  governed  by  anal- 
ogy to  the  rules  of  law,  and  under  which,  (the  same  objection 
not  occurring,)  they  had  made  the  trust  subject  to  curtesy.  Upon 
an  attentive  perusal  of  the  cases,  it  will  be  found,  that  after 
much  hesitation,  whether  to  prefer  consistency  of  principle,  or 
security  of  titles,  the  latter  motive  at  length  gained  the  ascen- 
dency, the  existence  of  an  anomalous  distinction  being  regarded 
as  of  less  importance  than  the  extensive  mischief  which  would 
have  been  produced  by  disregarding  a  practice  which  had  been 
applied  to  perhaps  half  the  titles  in  the  kingdom.  Some  judges 
have,  indeed,  endeavored  to  vindicate,  upon  principle,  the  rule 
which  denies  dower  of  a  trust,  but  the  consideration  above  stated 
has  been  the  substantial  and  predominating  ground  upon  which 


192  Title  VI.     Bower.     Ch.  II.  s.  25. 

that  rule  is  now  decisively  established  without  danger  of  further 
discussion.)  (a) 1 

{a)  Park  on  Dower,  123—126. 

1  The  origin  of  this  apparently  inconsistent  rule,  is  thus  explained  by  Lord  Redes- 
dale  : — "The  difficulty  in  which  the  Courts  of  Equity  have  been  involved  with  respect 
to  dower,  I  apprehend,  originally  rose  thus  : — They  had  assumed,  as  a  principle  in 
acting  upon  trusts,  to  follow  the  law;  and  according  to  this  principle,  they  ought  in  all 
cases  where  rights  attached  on  legal  estates,  to  have  attached  the  same  rights  upon 
trusts,  and,  consequently,  to  have  given  dower  of  an  equitable  estate.  It  was  found, 
however,  that  in  cases  of  dower,  this  principle,  if  pursued  to  the  utmost,  would  affect 
the  titles  to  a  large  proportion  of  the  estates  in  the  country ;  for  that  parties  had  been 
acting,  on  the  footing  of  dower,  upon  a  contrary  principle,  and  had  supposed,  that  by 
the  creation  of  a  trust,  the  right  of  dower  would  be  prevented  from  attaching.  Many 
persons  had  purchased  under  this  idea ;  and  the  country  would  have  been  thrown  into 
the  utmost  confusion,  if  Courts  of  Equity  had  followed  their  general  rule,  with  respect 
to  trusts  in  the  cases  of  dower.  But  the  same  objection  did  not  apply  to  tenancy  by  the 
curtesy ;  for  no  person  would  purchase  an  estate  subject  to  tenancy  by  the  curtesy,  with- 
out the  concurrence  of  the  person  in  whom  that  right  was  vested.  This  I  take  to  be 
the  true  reason  of  the  distinction  between  dower  and  tenancy  by  the  curtesy.  It  was 
necessary  for  the  security  of  purchasers,  of  mortgagees,  and  of  other  persons  taking  the 
leo-al  estates,  to  depart  from  the  general  principle  in  case  of  dower;  but  it  was  not 
necessary  in  the  case  of  tenancy  by  the  curtesy."  D'Arcy  v.  Blake,  2  Sch.  &  Lef.  R. 
388,  389. 

In  several  of  the  United  States,  the  common  law,  in  this  particular,  has  been  altered 
by  statutes,  and  the  wife  is  made  dowable  of  equitable  estates,  under  various  modifica- 
tions. In  some,  she  is  dowable  generally  of  estates  of  which  any  one  was  seised  to  the 
husband's  use.  Such  seems  to  be  the  law  in  Rhode  Island,  Rev.  St.  1844,  p.  188;  and 
in  New  Jersey,  Dennis  v.  Kiernan,  Elm.  Dig.  p.  147,  4  Kent,  Comm.  p.  46 ;  and  in 
North  Carolina,  Rev.  St.  Vol.  I.  p.  C14;  and  in  Tennessee,  Rev.  St.  1836,  p.  265.  In 
Indiana,  Rev.  St.  1843,  ch.  28,  §  80 — 84,  it  is  limited  to  such  equitable  estates  as  the 
husband  had  at  the  time  of  his  decease.  In  some  other  States,  her  right  extends  only 
to  those  equitable  estates  of  inheritance,  which,  if  legal,  would  entitle  her  to  dower  by 
the  common  law.  Such  are  the  statutes  of  Virginia,  Tate's  Dig.  p.  175;  Alabama, 
Toulmin's  Dig.  p.  247,  §  9 ;  and  Mississippi,  How.  &  Hut.  Dig.  p.  353.  In  Kentucky, 
Rev.  St.  Vol.  I.  p.  572,  note  2,  the  wife  may  have  dower  in  any  equitable  fee,  where 
the  interest  of  the  husband  was  sufficient  to  entitle  the  chancellor  to  decree  a  convey- 
ance to  him  of  the  legal  estate.  By  the  statute  of  Illinois,  Rev.  St.  1839,  p.  698,  §  49, 
it  is  enacted  that  "equitable  estates  shall  be  subject  to  the  widow's  dower,  and  all  real 
estate  of  every  description  contracted  for  by  the  husband  in  his  lifetime,  the  title  to 
which  may  be  completed  after  his  decease."  [This  means  equitable  estates  of  inheritance. 
Davenport  v.  Earrar,  1  Scam.  316,  in  argument.  See  also  Stribling  v.  Ross,  16  111.  172. 
A  widow  is  entitled  to  dower  of  land  in  which  her  husband  had  an  equitable  interest 
subject  to  any  lien  that  may  exist  thereon  for  purchase-money  unpaid.  Stewart  v. 
Beard,  4  Md.  Ch.  Decis.  319  ;  Blair  v.  Thompson,  11  Gratt.  441 ;  Thompson  v.  Thomp- 
son, 1  Jones's  Law,  N.  C.  430;  Firestone  v.  Eircstone,  2  Ohio,  N.  S.  415.]  In  Ohio, 
the  widow  is  dowable  of  the  interest  which  her  husband  had  at  the  time  of  his  decease 
in  any  lands  "held  by  bond,  article,  lease,  or  other  evidence  of  claim."    Ohio  Rev.  St. 


Title  VI.     Bower.     Ch.  II.  s.  26—28.  193 

*26.  It  has  been  stated  that  in  the  case  of  an  estate  *165 
tail,  the  curtesy  of  the  husband,  and  the  dower  of  the 
wife  continue ;  though  the  estate  tail  be  determined.  But  there 
are  several  cases  where  the  curtesy  and  dower  cease  upon  the 
determination  of  the  estate.  1.  Where  the  fee  is  evicted  by 
a  title  paramount,  both  curtesy  and  dower  necessarily  cease. 
2.  Where  the  seisin  of  the  husband  is  wrongful,  and  the  heir 
is  remitted ;  by  which  the  wrongful  estate  is  ^determined ;  the 
right  to  dower  ceases.  3.  Where  the  donor  enters  for  breach  of  a 
condition,  the  right  to  curtesy  and  dower  is  defeated.  4.  Where 
a  person  has  a  qualified  or  base  fee,  the  right  to  curtesy  and 
dower  ceases,  when  the  estate  is  determined.  5.  Where  an 
estate  in  fee  simple  is  made  determinable  upon  some  particular 
event,  if  that  event  happens,  curtesy  and  dower  cease  with  the 
estate,  (a) 

27.  The  interest  which  widows  acquired  by  way  of  dower  was 
seldom  greater  than  for  their  own  lives,  unless  it  was  otherwise  stip- 
ulated at  the  time  of  the  marriage.  And  in  England  dower  does 
not  appear  to  have  ever  consisted  of  more  than  an  estate  for  life.1 

28.  Before  the  abolition  of  military  tenures,  the  dowress  was 
attendant  on  the  heir,  or  whoever  else  was  entitled  to  the  rever- 
sion, for  the  third  part  of  the  services  ;  and  still  she  holds  of  the 
heir  by  fealty;  the  assignment  of  dower  by  the  heir  being  a 
species  of  subinfeudation,  not  prohibited  by  the  statute  Quia 
Emptores,  because  the  heir  does  not  depart  with  the  fee.2  (b) 

(a)  Lit.  s.  393.  Ante,  s.  18.  Tit.  13.  c.  2.  Seymour's  case,  10  Rep.  98.  a.  Buckworth 
V,  Thirkell,  tit.  38,  c.  17,  (5)  Gilb.  Uses,  357,    # 


1842,  ch.  42,  §  1 ;  Derush  v.  Brown,  8  Ohio,  E.  812.  And  such  seems  to  be  the  law 
of  New  York,  in  regard  to  any  equitable  interest  of  the  husband,  in  lands  of  which  he 
died  equitably  seised.  N.  York  Eev.  St.  Vol.  II.  p.  163,  169,  3d  ed. ;  4  Kent,  Comm. 
43—47.  See  further,  McCartee  v.  Teller,  2  Paige,  511 ;  Smiley  v.  Wright,  2  Ohio  R. 
507  ;  Brewer  v.  Vanarsdale,  6  Dana,  204 ;  Robinson  v.  Miller,  1  B.  Monroe,  R.  88,  91  ; 
Bailey  v.  Duncan,  4  T.  B.  Monr.  262  ;  Graham  v.  Graham,  6  T.  B.  Monr.  562  ;  Ste- 
vens v.  Smith.  4  J.  J.  Marsh.  65;  Dean  v.  Mitchell,  Ibid.  451  ;  Kelly  y.Mahan,  2  Yeatcs, 
515  ;  Hamlin  v.  Hamlin,  ]  Applet.  141. 

I1  The  possibility  of  right  to  dower  may  be  released,  but  it  cannot  be  the  subject  of 
grant  or  assignment,  nor  is  it  an  interest  in  real  estate.  Moore  v.  New  York,  4  Sel- 
den,  N.  Y.  110.  Before  assignment  a  right  of  dower  may  be  reached  by  a  creditor's 
bill.     Stewart  v.  McMartin,  5  Barb.  Sup.  Ct.  438.    See  Post,  ch.  3,  §  1,  note,  p.  *  168.] 

2  The  contradiction  between  this  passage,  and  the  last  sentence  in  §  20,  supra,  where 
VOL.    I.  17 


194  Title  VI.     Dower.     Ch.  II.  s.  29—31. 

29.  At  common  law,  a  dowress  could  not  devise  corn  which 
she  had  sown  ;  nor  did  it  go  to  her  personal  representatives,  but 
became  the  property  of  the  reversioner;  because  the  widow, 
being  entitled  to  an  immediate  assignment  of  dower,  after  the 
death  of  her  husband,  if  the  lands  happened  to  be  sown  at  that 
time,  she  had  the  benefit  of  it ;  which  made  her  case  different 
from  that  of  other  tenants  for  life,  who  are  seldom  put  into  pos- 
session of  lands  that  are  sown.  It  was,  however,  provided  by  the 
Statute  of  Merton,  20  Hen.  III.  c.  2,  that  a  dowress  might  dis- 
pose by  will  of  the  growing  corn  ;  otherwise  that  it  should  go  to 
her  executors,  (a)  1 

30.  Tenants  in  dower  were  under  the  same  restraints  respect- 
ing alienation  as  other  tenants  for  life.  But  where  a  dowress 
alienated  by  feoffment,  and  the  feoffee  died  seised,  whereby  the 

entry  of  the  person  in  reversion  was  taken  away,  he  could 
166  *    have  *  no  writ  of  entry  ad  communem  legem,  until  after 

the  decease  of  the  tenant  in  dower ;  and  then  the  war- 
ranty, which  at  that  time  was  usually  inserted  in  all  deeds, 
barred  the  reversioner,  if  he  was  heir  to  the  dowress.  To  remedy 
this,  the  Statute  of  Gloucester,  6  Edward  I.  c.  7,  provided,  that 
upon  the  alienation  in  fee,  or  for  life,  of  a  tenant  in  dower,  she 
shall  forfeit  her  estate  ;  and  the  heir  shall  have  a  writ  of  entry  in 
casu  proviso,  in  the  lifetime  of  the  dowress.  (b) 

31.  By  the  Statutes  11  Henry  VII.  c.  20,  f  and  32  Henry  VIII. 
c.  36,  it  is  declared  that  no  feoffment,  fine,  recovery,  or  warranty, 

(a)  2  Inst.  80,  (b)  2  Inst.  309. 

the  heir  ts  said  never  to  have  been  seised,  is  only  apparent,  and  not  i-eal.  The  author 
is  here  speaking  of  seisin  diverso  intuitu.  Where  lands  of  inheritance  are  carved  into 
different  estates,  the  tenant  of  the  freehold  in  possession,  and  those  in  remainder  or 
reversion  arc  equally  in  the  seisin  of  the  fee.  But  in  opposition  to  what  may  he  termed 
the  expectant  nature  of  the  seisin  of  those  in  remainder  or  reversion,  the  tenant  in  pos- 
session is  said  to  have  the  actual  seisin  of  the  lands.  Butler's  note  217  to  1  Inst.  266,  b. 
The  latter  seisin  is  only  entrusted  to  the  heir,  so  far  as  the  dowress  is  concerned ;  his 
seisin,  in  fact,  being  only  for  the  purpose  of  transferring  it  to  her.  But  his  ultimate  or 
expectant  seisin  of  the  reversion  is  that  which  he  is  said  not  to  depart  with. 

1  This  statute  seems  to  have  been  generally  regarded  as  common  law  in  the  United 
States,  though  in  some  of  them  this  provision  has  been  expressly  enacted.  See  N.  York, 
Rev.  St.  Vol.  II.  p.  29,  3d  ed. ;  Mode  Island,  Rev.  St.  1844,  p.  192 ;  North  Carolina,  Eev. 
St.  Vol.  I.  p.  615  ;  Arkansas,  Rev.  St.  1837,  ch.  52,  §  50  ;  LL.  Kentucky,  Vol.  I.  p.  575 ; 
Virginia,  Tate's  Dig.  p.  176.     [In  Delaware.     See  Layton  v.  Butler,  4  Hairing.  507. J 

[t  Except  as  to  lands  in  settlement  made  before  the  passing  of  the  Stat.  3  &  4  Will. 
4,  c.  74,  (s.  16,  17,)  the  above  act  is  repealed.] 


Title  VI.     Dower.     Ch.  II.  s.  31—34.  195 

by  tenant  in  dower,  shall  create  a  discontinuance  of  the  inheri- 
tance, or  take  away  the  entry  of  the  heir,  or  person  in  rever- 
sion ;  but  that  all  such  acts  shall  operate  as  a  forfeiture  of  her 
estate,  (a) 

32.  Tenants  in  dower  are  prohibited  from  committing  any 
kind  of  waste.1  But  it  was  lately  held  by  the  Court  of  Com- 
mon Pleas,  that  if  land  assigned  for  dower  contained  an  open 
mine  of  coal,  or  lead,  the  dowress  might  work  it  for  her  own 
benefit.2  (b) 

33.  It  is,  however,  somewhat  doubtful  whether  dowresses  be 
within  the  Statute  6  Ann.,  respecting  accidental  fire,  (c) 

34.  The  widow  holds  her  dower  discharged  from  all  incum- 
brances, created  by  her  husband  after  the  marriage  ;  f  because 
upon  the  husband's  death,  the  title  of  the  wife  being  consum- 
mate, has  relation  back  to  the  time  of  the  marriage,  and  to  the 
seisin  which  the  husband  then  had  ;  both  of  which  precede  such 

(a)  Tit.  36.  c.  10.  (b)  Ante,  s.  1.  (c)  1  Inst.  57.  a.  n.  1. 

1  Tenant  in  dower  is  entitled  to  estovers,  as  any  other  tenant  for  life.  But  these  can 
be  used  only  on  the  dower  land,  or  for  purposes  connected  with  its  proper  occupation. 
White  v.  Cutler,  17  Pick.  248.  See  ante,  tit.  3,  ch.  1,  §  17,  n.  In  New  Hampshire,  the 
dowress  is  entitled  to  take  fuel  to  burn  in  her  dwelling-house,  though  it  be  not  on  the 
land.     N.  Hamp.  Rev.  St.  1842,  ch.  165,  §  7.     As  to  Waste,  see  ante,  tit.  3,  ch.  2. 

2  It  is  not  necessary  that  the  husband  should  have  worked  the  mines  up  to  the  time 
of  his  death ;  nor  that  the  working  should  have  been  continued  by  the  heir.  S tough- 
ton  v.  Leigh,  1  Taunt.  402,  410;  Park  on  Dower,  116.  And  though  the  openings 
which  had  been  wrought  by  the  husband  have  been  abandoned  and  partially  filled  up 
in  his  lifetime,  the  dowress  may  work  them.  Coates  v.  Cheever,  1  Cowen,  E.  460,  465, 
474,  477.  If  the  course  of  working  a  quarry  has  been  by  breaking,  progressively,  a 
portion  of  the  surface  of  the  ground,  and  working  down  to  a  certain  depth,  she  may 
continue  it  in  that  method.  Billings  v.  Taylor,  10  Pick.  460.  So  she  may  penetrate 
new  seams,  or  sink  new  shafts.  Pindlay  v.  Smith,  6  Munf.  134  ;  Crouch  v.  Puryear, 
1  Rand.  253. 

[The  husband  of  a  tenant  in  dower  is  not  liable  for  mere  permissive  waste  after  the 
death  of  his  wife,  and  the  surrender  of  his  possession..  Dozier  v.  Gregory,  1  Jones's 
Law,  (N.  C.)  100  ;  but  he  commits  waste  by  removing  from  the  premises  a  building 
erected  thereon  by  himself.  Ibid.  Where  dower  is  assigned  in  wholly  unimproved,  and 
unproductive  town  lots,  and  in  a  tract  of  unimproved  woodland,  the  widow  may  sell 
timber  growing  on  the  woodland,  sufficient  to  raise  money  necessary  to  pay  taxes 
already  due,  and  that  have  become  a  lien  on  the  land,  and  to  pay  an  agent's  compensa- 
tion in  making  the  sales,  and  such  sale  is  not  waste.  Crockett  v.  Crockett,  2  Ohio, 
(N.  S.)  180.] 

[t  The  law  is  now  altered  except  as  it  respects  the  dower  of  women  married  before 
or  on  the  1st  day  of  January,  1834.  The  charges  and  incumbrances  of  the  husband 
arc  now  effectual  against  the  dower  of  the  wife  married  since  the  above-mentioned 
period.     Stat.  3  &  4  Will.  4,  c.  105,  s.  5,  vide  supra,  p.  160,  note] 


196  Title  VI.     Dower.     Ch.  II.  s.  34—36. 

incumbrances.  And  dower  is  even  protected  from  distress,  for 
a  debt  contracted  by  the  husband  to  the  crown,  during  the  mar- 
riage, (a) 

[35.  The  title  to  dower  may,  in  some  cases,  depend  upon  the 
election  of  third  persons. 

The  widow  is  prima  facie  entitled  to  be  endowed  of  a  rent 
charge ;  but  if,  before  distress  and  avowry  made,  the  husband 
die,  and  the  heir  brings  a  writ  of  annuity,  which  is  a  mere  per- 
sonal remedy,  and  recovers  judgment  on  it,  or  proceeds 
167  *  no  *  farther  than  filing  a  declaration,  the  heir's  election 
is  bound,  and  the  rent  charge  will  be  converted  into  per- 
sonal annuity.  But  if  before  declaration  or  avowry  by  the  heir, 
the  widow  recover  against  him  in  a  writ  of  dower,  her  right  will 
be  established,  (b) 

36.  Again,  where  the  husband,  previously  to  the  title  of 
dower  attaching,  has  by  contract  given  the  tenant  or  other  per- 
son an  option  of  purchasing  the  estate,  and  such  option  is  exer- 
cised either  before  or  after  the  husband's  death,  it  will  convert 
the  estate  into  personality,  and  defeat  the  widow's  right  to  en- 
dowment] (c) 

(a)  1  Inst.  46.  a.    4  Rep.  65.  a.    1  Inst.  31.  a.    Fitz.  N.  B.  150. 

(b)  Co.  Lit.  144.  b.  145.     Fitz.  N.  B.  152.  a. 

(c)  7  Yes.  436.     Townley  v.  Bedwell,  14  Yes.  591. 


197 


CHAP.  III. 


ASSIGNMENT   OF   DOWER,   AND   MODES   OF   RECOVERING    IT. 


Sect.     1.  Necessity  of  an  Assignment. 
2.   Who  may  assign  Doiver. 
6.  How  it  is  to  be  assigned. 
18.  Remedies     against    an     im- 
proper Assignment. 


Sect.  23.  Effect  of  an  Assignment  of 
Dower. 

26.  Actions  for  recovering  Dower. 

27.  May   be   obtained   in    Chan- 

cery. 


Section  1.  Upon  the  death  of  the  husband  the  right  to  dower, 
which  the  wife  acquired  by  the  marriage,  becomes  consummate ; 
but  unless  the  precise  portion  of  land  which  she  is  to  have  is 
particularly  specified,  as  was  formerly  sometimes  done,  she  can- 
not enter  till  dower  is  assigned  to  her ;  for  she  might  in  that  case 
choose  whatever  part  of  the  lands  she  pleased,  which  would  be 
injurious  to  the  heir.  The  widow  has  therefore  no  estate  in  the 
lands  of  her  husband  till  assignment; l  for  the  law  casts  the  free- 
hold on  the  heir,  immediately  upon  the  death  of  the  ancestor,  (a) 

2.  With  respect  to  the  persons  whose  duty  it  was  to  assign 
dower,  the  heir,  in  common  cases,  as  lord  of  the  manor, 
and  *  who  was  to  create  the  tenure,  assigned  dower.     If    *  169 
there  was  any  dispute  as  to  the  quantity  of  land  assigned, 

(a)  2  Bl.  Comm.  132.     Gilb.  Ten.  26. 

1  And  therefore  her  right  cannot  be  taken  in  execution  for  her  debt ;  nor  leased  ;  for 
it  lies  only  in  action,  until  assignment.  Gooch  v.  Atkins,  14  Mass.  378;  Cox  v.  Jag- 
ger,  2  Cowcn,  638 ;  Weaver  v.  Crenshaw,  6  Ala.  R.  873  ;  Croade  v.  Ingraham,  13  Pick. 
33 ;  Nason  v.  Allen,  5  Greenl.  479.  [But  it  may  be  reached  by  a  creditor's  bill.  Stew- 
art v.  McMartin,  5  Barb.  Sup.  Ct.  438.  It  cannot  be  aliened.  Blair  v.  Harrison,  11 
111.384.  Nor  be  taken  on  execution.  Summers  v.  Babb,  13  lb.  483.  Nor  be  assigned  or 
sold.  Lamar  v.  Scott,  4  Rich.  Law,  516.  But  she  may  make  such  a  contract  in  regard  to 
it,  as  equity  will  enforce.  Potter  v.  Everitt,  7  Ired.  Eq.  152.  Being  a  right  in  real  prop- 
erty, it  cannot  be  released  or  conveyed  by  parol.  Keeler  v.  Tatnell,  3  Zabr.  62.]  Nor 
has  she  such  an  interest  in  her  husband's  land  of  which  she  is  dowable,  as  to  prevent 
her  removal  as  a  pauper  from  the  parish  in  which  the  land  lies.  Rex  v.  Northweakl 
Bassett,  2  B.  &  C.  724.  But  in  Connecticut,  it  seems,  she  is  regarded  as  a  tenant  in 
common  with  the  heirs,  until  her  dower  is  set  out  in  severalty ;  from  which  it  would 
follow  that  her  right  is  capable  of  being  conveyed  or  taken,  as  an  estate  of  freehold. 
Stcdman  v.  Fortune,  5  Conn.  462. 
17* 


198  Title,  yi.     Bower.     Ch.  III.  s.  2—7. 

it  was  determined  by  the  pares  curia,  in  the  Court  Baron ;  but 
the  suit  might  be  removed  to  the  county  court,  and  also  to  the 
king's  court. 

(3.  Though  the  heir  be  ivithin  age,  yet  the  assignment  by  him 
is  good  ;  subject  only  to  be  corrected,  if  excessive,  by  a  writ  of 
admeasurement  of  dower.1) 

4.  Regularly  no  person  can  assign  dower  who  has  not  a  free- 
hold estate  in  the  land.  But  where  a  disseisor,  abator,  or  intruder, 
assigns  dower,  it  is  good,3  and  cannot  be  avoided ;  unless  they 
are  in  of  such  estates  by  fraud  and  covin  of  the  widow,  to  the 
intent  that  she  may  be  endowed  by  them,  or  recover  dower 
against  them ;  for  in  that  case  the  assignment  may  be  avoided 
by  the  entry  of  the  real  owner,  (a) 

5.  The  reason  why  such  an  assignment  of  dower  shall  be  good 
is,  because  the  widow  having  a  right  to  dower,  she  might  have 
compelled  the  disseisor,  abator,  or  intruder,  as  terre-tenants,  to 
assign  dower  to  her ;  and  was  not  obliged  to  wait  till  the  heir 
thought  proper  to  reenter,  or  sue  for  the  recovery  of  his  right. 
But  where  the  heir  or  other  tenant  of  the  land  refuses  to  assign 
dower,  and  the  widow  is  obliged  to  resort  to  the  courts  of  law  to 
obtain  an  assignment,  it  is  made  by  the  sheriff,  (b) 

6.  With  respect  to  the  manner  in  which  dower  ought  to  be 
assigned,  the  rule  is,  that  where  the  property  is  capable  of  being 
severed  it.must  be  by  metes  and  bounds  ;  and  if  the  sheriff  does  not 
return  seisin  by  metes  and  bounds,  it  is  ill.  But  where  no  divis- 
ion can  be  made,  the  widow  must  be  endowed  in  a  special  and 
certain  manner.  As  of  a  mill,  a  widow  cannot  be  endowed  by 
metes  and  bounds,  nor  in  common  with  the  heir ;  but  she  may 
be  endowed,  either  of  the  third  toll  dish,  or  of  the  entire  mill,  for 
a  certain  time,  (c) 

(7.  If  the  husband  has  aliened  the  land  to  two  or  more  in  sev- 
eralty, the  dower  is  to  be  assigned  in  each  distinct  parcel  of  the 
land.  And  so,  in  like  manner,  if  he  has  aliened  to  one,  and  the 
grantee  has  afterwards  conveyed  to  others,  in  several  parcels. 
For  though  this  may  impair  the  value  of  the  dower,  it  does  not 

(«)  1  inst.  35.  a.  357.  b.      (b)  1  Inst,  35.  a.  357.  b.     Perk.  394.     1  Inst.  34.  b.      (c)  1  Inst.  32.  a. 

1  1  Roll,  Abr.  137,  631;  Gore  v.  Perdue,  Cro.  El.  309;  Stoughton  v.  Lee,  1  Taunt. 
402;  Jones  v.  Brewer,  1  Pick.  314;  [Cormick  v.  Taylor,  2  Carter,  (Ind.)  336.] 

2  For  he  is  in  of  the  husband.    Parker  v.  Murphy,  12  Mass.  485. 


Title  VI.     Dower.     Ch.  III.  5.  7—12.  199 

diminish  the  proportion  in  quantity.  And  in  such  cases  it  will 
be  assigned  in  the  portion  of  the  land  which  does  not  include 
the  beneficial  improvements  of  the  purchaser,  where  this  may 
conveniently  be  done.)1 

8.  It  was  held  by  the  Court  of  Common  Pleas,  in  a  late  case, 
that  dower  may  be  assigned  of  mines,  either  collectively  with 
other  lands,  or  separately  of  themselves ;  that  it  should  be  as- 
signed by  metes  and  bounds,  if  practicable,  otherwise  either  by 
a  proportion  of  the  profits,  or  separate  alternate  enjoyment  of  the 
whole,  for  short  proportionate  periods,  (a) 

9.  Dower  was  assigned  by  metes  and  bounds,  because  it  was 
a  tenancy  of  the  heir,  and  like  all  other  lands  in  tenure  ought  to 
be  separated  from  the  demesnes  of  the  manor.  The  right  to 
have  an  assignment  of  dower  by  metes  and  bounds  may,  how- 
ever, be  waived  by  the  widow ;  and  in  that  case  an  as- 
signment in  *  common  will  be  good.  But  an  assignment  *  170 
by  the  sheriff  must  be  by  metes  and  bounds,  if  it  can  be 
done,  (/j) 

10.  An  assignment  by  metes  and  bounds  can  only  take  place 
where  the  husband  is  seised  in  severalty;  for  where  he  is  seised 
in  common  with  others,  his  widow  cannot  be  endowed  by  metes 
and  bounds  ;  for  she  being  in  pro  tanto  of  her  husband's  estate, 
must  take  it  in  the  manner  in  which  he  held  it.  (c) 

11.  Lord  Coke  says  an  endowment  by  metes  and  bounds, 
according  to  common  right,  was  more  beneficial  to  the  widow 
than  to  be  endowed  against  common  right ;  for  there  she  shall 
hold  the  land  charged,  in  respect  of  a  charge  made  after  her  title 
to  dower,  (d) 

12.  The  assignment  of  dower  must  be  of  part  of  the  lands 
whereof  the  widow  is  dowable  ;  for  an  assignment  of  land 
whereof  she  is  not  dowable,  or  of  a  rent  issuing  out  of  such 
lands,  is  no  bar  of  dower ;  because  a  right  or  title  to  a  freehold 
estate  cannot  be  barred  by  a  collateral  satisfaction.  But  a  rent 
issuing  out  of  the  land  whereof  a  woman  is  dowable  may  be 
assigned  for  dower.     And  if  a  tenant  in  tail  assigns  a  rent  out  of 

{a)  Ante,  c.  2.  s.  1. 

(b)  Gilb.  Uses,  356.  Coots  v.  Lambert,  9  Vin.  Ab.  256.  Rowe  v.  Power,  2  Bos.  &  Pull. 
N.  Pv.  1.  (c)  1  Inst.  32.  b.     9  Vin.  Ab.  256.  (d)  1  Inst.  32.  b.  n.  2. 

1  Fosdick  v.  Gooding,  1  Greenl.  SO ;  Leggett  r.  Steele,  4  Wash.  305 ;  Coulter  v. 
Holland,  2  Harringt.  330  ;  Potter  v.  Wheeler,  13  Mass.  504. 


200  Title  VI.     Dower.     Ch.  III.  s.  12—17. 

the  land  intailed  for  dower,  not  exceeding  the  yearly  value  of 
such  dower,  it  will  bind  the  issue  in  tail,  (a) 

13.  If  an  assignment  and  grant  of  lands  be  made  to  a  woman 
for  a  term  of  years,  in  recompense  of  her  dower,  this  will  not  bar 
her  of  dower,  because  she  has  not  such  an  estate  as  if  she  had  been 
endowed ;  namely,  an  absolute  estate  for  life.  It  is  the  same 
if  she  accepts  a  rent  for  years  in  allowance  of  her  dower,  or  for 
the  life  of  him  who  assigns  it.  These  rents  will  not  bar  her  of 
dower,  because  she  has  not  the  same  estate  in  them  as  in  her 
dower,  (b) 

14.  The  assignment  of  dower  must  also  be  absolute  ;  and  not 
subject  to  be  defeated  by  any  condition,  nor  lessened  by  any 
•exception  or  reservation.  For  the  widow  comes  to  her  dower  in 
the  per,  by  her  husband,  and  is  in,  in  continuance  of  his  estate, 
which  the  heir  or  terre-tenant  is  but  a  minister,  or  officer  of  the 
law,  to  carve  out  to  her.  Therefore  such  conditions  or  reserva- 
tions are  totally  void,  and  her  estate  discharged  from  them ;  or 
else  the  estate  assigned  with  such  conditions  is  no  bar  to  her 
recovery  of  dower,   in  an    action.     But  where  the   lands  were 

leased   for  years  before  the  marriage,  the  assignment  of 
171  *     *  dower  is  made  with  a  proviso  that  the  tenant  for  years 
shall  not  be  disturbed,  (c) 

15.  Dower  may  be,  and  was  usually  assigned  by  the  heir,  by 
a  parol  declaration '  that  the  widow  shall  have  such  particular 
lands  for  her  dower;  or  else  that  she  shall  have  a  third  part  of 
all  lands  whereof  her  husband  died  seised,  (d) 

16.  In  some  cases  a  woman  shall  have  a  new  assignment  of 
dower.  As  where  she  is  evicted  out  of  the  lands  assigned  to 
her,  she  shall  be  endowed  of  a  third  of  the  remainder,  (e) 

(17.  Respecting  the  wife's  right  to  dower  in  the  increased  value 

(a)  Turney  v.  Sturges,  Dyer  91.     Vernon's  case,  4  Eep.  1.  a.    9  Vin.  Ab.  261. 
(&)  9  Vin.  Ab.  258.     2  And.  31.     Hob.  E.  153. 

(c)  1  Inst.  34.  b.  Wentworfh  v.  Wentworth,  Cro.  Eliz.  450.  Wheatley  ».  Best,  Cro.  Eliz. 
564.        (d)  1  Inst.  5.  a.     Bootb  r.  Lambert,  Sty.  276.        (e)  Bustard's  case,  4  Eep.  122.  a. 

1  The  reason  why  a  parol  assignment  is  valid,  is,  that  it  is  not  a  conveyance  of  title, 
the  widow  holding  her  estate  by  law,  and  not  by  contract,  and  therefore  it  is  not  within 
the  Statute  of  Frauds.  She  requires  nothing  but  to  have  her  part  distinguished  by 
metes  and  bounds.  Conant  v.  Little,  1  Pick.  189 ;  Pinkham  v.  Gear,  3  X.  Hamp.  153 ; 
Shattuck  v.  Gragg,  23  Pick.  88  ;  Johnson  v.  Neil,  4  Ala.  R.  166;  Baker  v.  Baker,  4 
Greenl.  67.  But  a  parol  assignment  does  not  bind  the  widow  until  it  is  accepted. 
Johnson  v.  Morse.  2  N.  Hamp.  48;  [Boyer  v.  Newbanks,  2  Carter,  (Intl.)  38S] 


Title  VI.     Bower.     Ch.  III.  s.  17—17  a.  201 

q/"///e  land,  subsequent  to  the  husband's  decease,  or  his  aliena- 
tion of  it  to  «a  stranger,  some  distinctions  have  been  taken  which 
should  here  be  noted.  The  value  may  have  been  increased, 
either  by  lasting  improvements  made  by  the  heir,  after  the  hus- 
band's decease ;  or  by  such  improvements  made  by  the  pur- 
chaser, after  the  alienation  of  the  husband ;  or  by  circumstances 
irrespective  of  either,  and  connected  only  with  the  general  growth 
and  prosperity  of  the  neighborhood  or  country.  It  is  true  that 
the  improvements,  however  made,  are  attached  to  the  soil  and 
become  inseparably  part  of  the  freehold  ;  and,  therefore,  upon 
general  principles,  there  seems  no  reason  why  they  should  not 
go  with  the  land  to  the  dowress,  as  well  as  to  any  other  alienee, 
or  as  they  would  have  reverted  with  the  land  to  the  husband* 
upon  condition  broken,  were  he  still  alive.  And  hence  it  has 
uniformly  been  held,  that  the  widow  shall  be  endowed  of  lasting- 
improvements  made  by  the  heir ;  for  he  is  not  considered  as  having 
been  seised  of  that  part  of  the  estate  assigned  to  her  in  dower ; 
and  her  seisin  is  only  a  continuance  of  that  of  the  husband. 
The  reason  sometimes  assigned  for  this  is,  that  it  was  the  heir's 
own  folly  to  make  the  improvements,  before  assigning  the  dower ; 
but  though  this  may  be  so,  yet  it  does  not  affect  the  general  prin- 
ciple.1 

The  same  general  doctrine  prevails  in  regard  to  the  increased 
value  of  the  premises  resulting  from  other  and  extraneous  causes, 
unconnected  with  any  improvements  actually  made  upon  the 
land ;  and  accordingly  the  wife  has  one  third  part  of  the  land 
assigned  for  her  dower,  with  the  benefit  of  all  this  enhanced 
value  of  that  part,  existing  at  the  time  of  the  assignment.2 

17  a.  But  in  regard  to  the  improvements  made  by  the  alienees 
of  the  husband,  an  exception  was  for  a  long  time  admitted  in 
England,  in  favor  of  the  alienees  ;  their  improvements  being 
excluded  in  the  computation  of  value,  upon  the  endowment  of 
the  wife.  The  reason  assigned  for  this  exception  was,  that  as 
the  alienee  could  recover  against  the  heir  only  the  value  of  the 
land  as  it  was  at  the  time  of  the  conveyance,  he  would  lose  the 
value  of  his  improvements,  if  the  widow  should  be   allowed  her 

1  Park  on  Dower,  256,  257;  Perk.  §  328,  329 ;  Powell  v.  Monson,  3  Mason,  R.  347, 
365—370;  4  Kent,  Comm.  66;  Parker  v.  Parker,  17  Pick.  236.  [See  Purrington  v. 
Pierce,  38  Maine,  447.] 

2  Ibid. 


202  Title  VI.     Dower.     Ch.  III.  s.  17  a— 19. 

dower  in  them.1  But  this  reason  has  been  considered  not  satis- 
factory, both  in  England  and  in  America,  though  with  different 
results.  • 

In  a  late  case  in  the  Queen's  Bench,  this  exception  was  upon 
full  consideration  overruled;  and  it  was  held  by  all  the  judges 
that,  on  common  law  principles,  the  wife  was  entitled  to  a  third 
in  value  of  the  land,  estimating  the  value  as  it  was  at  the  time  of 
the  assignment,  although  it  had  been  conveyed  away  by  the 
husband  in  his  lifetime,  and  improved  in  value  by  buildings 
erected  thereon  by  the  alienee  after  the  conveyance  and  before 
the  assignment  of  the  dower.'2  But  in  the  United  States,  this 
exception  is  fully  recognized  and  admitted,  on  grounds  of  public 
policy  and  convenience,  for  the  encouragement  of  alienations,  and 
to  promote  the  general  prosperity  and  improvement  of  the  coun- 
try ;  and  the  widow's  right  of  dower,  as  against  the  alienees  of 
the  husband,  is  generally,  if  not  universally,  limited  to  the  value 
of  the  premises,  exclusive  of  the  improvements  made  upon  the 
land  by  the  purchaser  and  those  claiming  under  him.3 

18.  Where  the  sheriff  makes  an  improper  assignment  of  dower, 
it  will  be  set  aside  by  the  Court  of  Common  Pleas,  or  the  Court 
of  Chancery  ;  and  he  will  be  punished.4 

19.  Thus  where  the  sheriff  returned  that  he  had  assigned  to 
the  demandant,  for  her  dower  of  a  house,  the  third  part  of  each 
chamber ;  and  had  chalked  it  out  for  her.  This  was  held  an 
idle  and  malicious  assignment ;  and  the  sheriff  was  committed 
for  it,  as  he  ought  to  have  assigned  to  her  certain  chambers  or 
rooms.5  (a) 

(a)  Abingdon's  case,  cited  in  Palm.  204. 


1  Park  on  Dower,  256,  257  ;  Perk.  §  328;  Co.  Lit.  32,  a.  ;  4  Kent,  Comm.  65,  66 ; 
Powell  v.  Monson,  3  Mason,  R.  369. 

2  Doe  d.  Eiddell  v.  Gwinnell,  1  Ad.  &  El.  682,  N.  S. 

3  Powell  v.  Monson,  3  Mason,  R.  347,  365-370;  Gore  v.  Brazier,  3  Mass.  544;  Cat- 
lin  u.Ware,  9  Mass.  21S;  Thompson  v.  Morrow,  5  S.  &  R.  289;  Hale  v.  James,  6 
Johns.  Ch.  R.  258 ;  4  Kent,  Comm.  65,  66  ;  Waters  v.  Goueh,  6  J.  J.  Marsh.  591 ;  Tay- 
lor v.  Brodrick,  1  Dana,  R.  347  ;  [Carter  v.  Parker,  28  Maine,  (15  Shep.)  509  ;  Manning 
v.  Laboree,  33  lb.  (3  Red.)  343  ;  Simonton  v.  Gray,  34  lb.  (4  Red.)  50 ;  Bowie  v.  Berry, 
1  Md.  Ch.  Decis.  452;  Summers  v.  Babb,  13  111.484.] 

4  [An  assignment  to  a  widow  of  a  portion  of  the  land  in  fee,  equal  in  value  to  her 
dower  in  the  whole  will  be  set  aside.     Wilhelm  v.  Wilhelm,  4  Md.  Ch.  Deeis.  330.] 

5  Such  an  assignment,  with  the  right  of  common  use  of  the  hall  and  passage-ways 
for  access  to  the  rooms,  would  have  been  good.     White  v.  Story,  2  Hill,  N.  Y.  R.  543. 


Title  VI.     Bower.     Ch.  III.  s.  20—24.  203 

20.  In  another  case  the  sheriff  was  committed  for  refusing  to 
make  an  equal  allotment  of  dower ;  and  for  taking  sixty  pounds 
to  execute  the  writ.  An  information  was  also  ordered  against 
him.  (a) 

21.  A  bill  was  brought  by  the  heir  to  be  relieved  against  a 
fraudulent  assignment  of  dower  by  the  sheriff;  because  a  third 
part  of  the  lands  was  assigned,  without  taking  notice  of  a  coal 
work  that  was  on  the  estate ;  the  plaintiff  offering  the  defen- 
dant one  entire  third,  both  of  land  and  coal  work,  by  way  of  rent- 
charge  on  the  whole.  The  Court  ordered  that  she  should  accept 
thereof ;  or  that  otherwise  a  new  assignment  of  dower  should  be 
made,  (b) 

[22.  When  the  assignment  of  dower  is  made  not  by  the  sheriff 
but  by  the  heir,  if  he  were  of  full  age,  and  under  no  disability 
when  he  made  the  assignment,  although  the  assignment  exceeded 
the  widow's  third  of  the  value  of  the  estate,  he  will  not  be  re- 
lieved by  a  court  of  law.  (c) 

But  if  the  heir  were  under  age,  when  he  assigned  dower,  he 
will  be  protected  against  the  consequences  of  excessive  assign- 
ment, and  may  have  his  writ  of  admeasurement  of  dower,  (d)1 

But  he  cannot  defeat  the  assignment  of  dower  by  en- 
try.]  (e) 

*  23.  The  widow  acquires  an  estate  of  freehold  by  the     *  172 
assignment,  without   livery  of  seisin ; 2  because  dower  is 
due  of  common  right ;  and  the  assignment  is  an  act  of  equal 
notoriety.  (/) 

24.  As  soon  as  dower  is  assigned,  the  widow  holds  by  the  in- 
stitution of  the«law,  and  is  in  of  the  estate  of  her  husband;  so 
that  after  assignment  she  is  considered  as  holding  by  an  infeuda- 
tion  immediately  from  the  death  of  her  husband ;  therefore  the 
heir  is  not  considered  as  having  ever  been  seised  of  that  part  of 
his  ancestor's  estate,  whereof  the  widow  is  endowed,  (g) 

(a)  Longvill's  case,  1  Keb.  743.  (b)  Hoby  v.  Hoby,  1  Vera.  218. 

(c)  Gilb.  Dower,  380.     Sloughton  v.  Leigh,  1  Taunt.  404,  412.     (F.  N.  B.  148.  G.  II.) 

(d)  Gilb.  Dower,  382.     Fitz.  N.  B.  148.  G.  H.  (e)  Gilb.  Dower,  388. 
(/)  1  Inst.  35.  a. 

(.7)  Lit.  s.  393.  Gilb.  Uses,  356,  395.  (Windham  v.  Portland,  4  Mass.  384,  388.  Jones  v. 
Brewer,  1  Pick.  314.)    Ante,  c.  2.  §  20,  28.  n. 

f1  Gormick v.  Taylor,  2  Carter,  (Ind.)  336.1 

2  If  the  land  in  possession  of  the  heir  is  assigned  to  the  widow  for  dower  with  his 
consent,  by  process  of  law,  she  thereby  acquires  a  defeasible  title  to  that  parcel  of  land, 


204  Title  VI.     Dower.     Ch.  III.  s.  25—29. 

25.  Where  dower  is  assigned,  there  is  a  warranty  in  law, 
implied,  that  if  the  tenant  be  impleaded,  she  shall  vouch  the 
heir ;  and  if  evicted,  shall  recover  in  value  a  third  of  the  remain- 
der, (a) 

26.  Where  the  heir  or  terre-tenant  refuses  to  assign  dower  to 
the  widow,  the  law  has  provided  her  with  several  remedies  for 
recovering  it.  The  first  of  these  is  the  writ  of  dower,  iinde 
nihil  habet.  which  lies  where  no  dower  has  been  assigned.  But 
if  any  part  of  dower  has  been  assigned,  the  widow  cannot  say 
wide  nihil  habet,  and  therefore  she  must  have  recourse  to  the 
writ  of  dower ;  which  is  a  more  general  remedy,  extending 
either  to  a  part  or  to  the  whole.  (b)j 

27.  Where  a  woman  was  disabled  from  suing  for  her  dower  at 
law,  she  was  always  relieved  in  equity.  And  now  it  is  settled 
that  widows  labor  under  so  many  difficulties  at  law,  from  the 
embarrassment  of  trust  terms,  and  other  matters,  that  they  are 
fully  entitled  to  every  assistance  which  a  court  of  equity  can 
o-ive  them,  not  only  in  paving  the  way  to  establish  their  right  at 
law,  but  also  in  giving  them  complete  relief,  when  the  right  is 
ascertained,  (c) 

28.  Where  a  mother  was  guardian  to  her  child,  and  received 
the  rents  of  the  estate  of  which  she  was  dowable,  but  dower 
was  never  assigned  to  her,  the  Court  of  Chancery  held  that  the 
want  of  a  formal  assignment  of  dower  was  nothing  in  equity,  for 
still  the  right  in  conscience  was  the  same.  And  if  the  heir 
brought  a  bill  against  the  mother  for  an  account  of  the  profits, 
it  was  just  that  a  court  of  equity  should,  in  the  account,  allow  a 

third  of  the  profits  for  the  right  of  dower.*(^/) 
173*         *  29.  [In  assigning  dower,  the  Court  of  Chancery  allows 
the  widow  an  account  of  mesne  profits  from  the  death  of 

(a)  1  Inst.  38.  b.     Bustard's  case,  4  Co.  Rep.  122.  a.     (Scott  v.  Hancock,  13  Mass.  162.) 

(b)  Gilb.  Uses,  374,  367. 

(c)  Tothill,  82.  Treat,  of  Eq.  B.  1.  c.  1.  s.  3.  Curtis  v.  Curtis,  2  Bro.  C.  C.  620.  Mundy 
v.  Mundy,  4  ib.  294.    2  Rop.  Husb.  and  Wife,  Jac.  ed.  450—1.  &  n. 

(d)  Hamilton  v.  Mohun,  1  P.  Wms.  118. 


to  be  rendered  absolute  by  the  subsequent  acceptance  and  confirmation  of  the  assign- 
ment by  the  proper  court ;  and  therefore  she  may  enter  forthwith,  and  gather  the  crop 
previously  sown  by  the  heir.     Parker  v.  Parker,  17  Pick.  236. 

1 1  Writs  of  right  of  dower,  unde  nihil  habet,  a  quare  impedit  and  ejectment  are  ex- 
cepted out  of  the  36th  section  of  the  Stat.  3  &  4  Will.  4,  c.  27,  by  which  real  and  mixed 
actions  are  abolished.] 


Title  VI.     Dower.     Ch.  III.  s.  29.  205 

the  husband,  and  will  not  permit  her  title  to  them  to  be  defeated 
by  the  death  of  the  tenant  pendente  lite,  and  although  the  length 
of  time  which  may  have  elapsed  since  the  husband's  death  exceed 
six  years  prior  to  the  bill  filed.]  (a)  f 

(a)  Curtis  v.  Curtis,  vbi  supra.     Oliver  v.  Richardson,  9  Ves.  122. 


t  By  the  Stat.  3  &  4  Will.  4,  c.  27,  s.  41,  it  is  enacted,  that  after  the  31st  day  of  De- 
cember, 1833,  no  arrears  of  dower,  nor  any  damages  on  account  of  such  arrears,  shall 
be  recovered  by  action  or  suit,  for  a  longer  period  than  six  years  next  before  the  com- 
mencement of  such  action  or  suit.  (So,  in  New  York,  Rev.  St.  Vol.  II.  p.  28,  3d  ed.) 
[The  consent  of  all  parties  interested  is  necessary  to  authorize  a  decree  of  a  specific 
sum  in  lieu  of  dower.    Blair  v.  Thompson,  11  Gratt.  (Va.)  441.] 


VOL.    I.  18 


206 


CHAP.  IV. 


WHAT   WILL   OPERATE   AS   A   BAR   OR   SATISFACTION   OF   DOWER. 


Sect.     2.  Attainder  of  the  Husband. 

3.  Attainder  of  the  Wife. 

4.  Elopement  with  an  Adulterer. 
11.  Detinue  of  CJiarters. 

13.  Fine  or  Recover?/. 

14.  Deed. 

1 5.  Bargain  and  Sale  in  London. 

16.  Jointure. 


Sect.  18.  An  Outstanding  Term. 

19.  A  Devise  is  no  Bar  to  Dower. 

24.  Unless  so  expressed,  when  the 
Widow  has  an  Election. 

29.  Sometimes  held  a  Satisfac- 
tion. 

32..  A  Bequest  of  Personal  Estate 
no  Bar  to  Dower. 


Section  1.  The  right  to  dower  attaches  at  the  instant  of  the 
marriage ;  nor  can  it,  by  the  common  law,f  be  defeated  by  the 
alienation  of  the  husband  alone ;  but  still  the  wife  may  be 
barred  from  claiming  dower  by  several  acts  subsequent  to  the 
marriage. 

2.  Formerly,  if  a  man  was  attainted  of  treason  or  felony,  his 
wife  was  thereby  barred  of  her  dower  at  common  law,  and  by 
custom ;  except  where  the  lands  were  held  in  gavelkind.  By 
the  Statute  1  Edw.  VI.  c.  12,  the  rigor  of  the  common  law  was 
abated  in  this  respect,  it  being  thereby  enacted  that  in  all  cases 
where  the  husband  was  attainted  of  treason  or  felony,  his  wife 
should  have  dower.  But  a  subsequent  Statute,  5  &  6  Edw.  VI. 
c.  11,  revived  this  severity  against  the  widows  of  traitors,  who 
are  now  barred  of  dower.  And  the  words  of  the  act  being 
general,  exclude  the  wife,  as  well  in  cases  of  petit,  as  of  high 
treason.  (a)% 

(«)  1  Inst.  41.  a.     Rob.  Gav.  230.    1  Inst.  392.  b. 


[  t  Altered  by  Stat.  3  &  4  Will.  4,  c.  105,  s.  14.] 
175*  |  In  cases  of  misprision  of  treason,  or  attainder  of  felony  *  only,  the  Stat.  1 
Edw.  6,  is  still  in  force  ;  therefore  the  widows  of  such  persons  are  entitled 
to  dower  ;  and  where  offences  have  been  made  felony  by  modern  acts  of  parliament, 
the  wife's  dower  is,  in  general,  expressly  saved.  4  Bl.  Comm.  392;  5  Eliz.  c.  11,  s.  4  : 
18  ib.  c.  1,  s.  2 ;  8  &  9  Will.  3,  c.  36,  s.  7  ;  15  Geo.  2,  c.  28,  s.  4. 


Title  VI.     Dower.     Ch.  IV.  s.  2—5.  207 

[The  attainder,  though  followed  by  pardon,  will  defeat  the 
dower  of  lands  whereof  the  husband  was  seised  prior  to  such 
pardon.  But  if  the  attainder  be  reversed  for  error,  the  widow's 
title  will  revive.]  (a) 

3.  If  a  woman  be  attainted  of  treason  or  felony,  she  will 
thereby  lose  her  dower  ;  but  if  pardoned,  she  may  then  demand 
it,  though  her  husband  should  have  aliened  his  land  in  the  mean- 
time ;  for  when  this  impediment  is  once  removed,  her  capacity 
to  be  endowed  is  restored,  (b) 

4.  It  has  been  stated  that  a  divorce  on  account  of  adultery  is 
no  bar  to  dower.1  But  by  the  Stat.  Westm.  2,  c.  34,  it  is  enacted, 
that  if  a  wife  willingly  leaves  her  husband  and  continues  with  an 
adulterer,  she  shall  be  barred  of  her  action  to  demand  dower, 
if  she  be  convicted  thereupon;  except  her  husband  willingly,2 
and  without  coercion  of  the  church,  reconcile  her,  and  suffer  her 
to  dwell  with  him  ;  in  which  case  she  shall  be  restored  to  her 
action.3  [And  in  a  recent  case  it  was  held  that  adultery  was  a 
bar  to  dower,  although  committed  after  the  husband  and  wife 
had  separated  by  mutual  consent.]  (c) 

5.  Lord  Coke,  in  his  comment  on  the  above  statute,  observes 
on  the  words  si  sponte  reliquerit  virum  suum,  et  abierit,  et 
moretur  cum  adultero ;  that  although  the  words  of  this  branch 
be  in  the  conjunctive,  yet  if  the  woman  be  taken  away,  not 
sponte,  but  against  her  will,  and  after  consent,  and  remain  with 

(a)  Mayne's  case,  1  Leon.  3.  pi.  7.  Co.  Lit.  392.  Perk.  s.  387.  Menvill's  case,  13  Eep.  19. 
Moor,  639.  (b)  1  Inst.  33.  a.    Menvill's  case,  13  Eep.  23. 

(c)  Hethrington  v.  Graham,  6  Bing.  135.    2  Inst.  433. 

i  [Ante,  Title  VI.  ch.  1,  §  16,  *  155.] 

2  He  is  not  obliged  to  receive  her,  after  she  has  willingly  lived  with  an  adulterer, 
even  though  he  had  himself  previously  brought  an  adulteress  into  the  house  and  turned 
his  wife,  then  innocent,  out  of  doors.     Govier  v.  Hancock,  6  T.  R.  603. 

3  In  some  of  the  United  States  this  provision  has  been  expressly  reenacted.  See 
LL.  New  Jersey,  Elmer's  Dig.  p.  145  ;  Ohio,  Rev.  St.  1841,  ch.  42,  §  6  ;  Illinois,  Rev.  St. 
1839,  p.  254.  But  it  is  believed  to  be  held  as  the  common  law  of  this  country,  in  all 
the  States  originally  settled  by  English  colonists  or  their  descendants.  Sec  4  Dane's 
Abr.  672,  676;  4  Kent,  Comm.  53;  Cogswell  v.  Tibbetts,  3  N.  Hamp.  41.  In  Con- 
necticut, it  is  necessarily  implied  in  the  statute,  which  gives  dower  only  to  the  wife  who 
lived  with  her  husband  at  the  time  of  his  death,  or  was  "  absent  from  him  by  his  con- 
sent, or  by  his  default,  or  by  inevitable  accident."  Conn.  Rev.  St.  1838,  p.  188.  By 
the  Scotch  law,  adultery  is  a  forfeiture  of  dower,  if  the  husband  adopted  any  proceed- 
ings at  law,  evincive  of  his  intent  to  that  effect,  or  of  his  offence  against  her ;  and  this 
whether  she  eloped  or  not.    1  Stair's  Inst.  39  (n)  321. 


208  Title  VI.     Dower.     Ch.  IV.  s.  5—8. 

the  adulterer,  without  being  reconciled,  she  shall  lose  her  dower. 
For  the  cause  of  the  bar  of  her  dower  is  not  the  manner  of  her 
going  away,  but  the  remaining  with  the  adulterer,  without  recon- 
ciliation. He  also  observes  upon  the  words  moretur  cum  adul- 
tero,  that  although  she  does  not  continually  remain  with  the 
adulterer,  yet  if  she  be  with  him,  and  commits  adultery,  it  is  a 
tarrying  within  the  statute.  Also  if  she  once  remains  with  the 
adulterer,  and  after  he  keeps  her  against  her  will ;  or  if  the  adul- 
terer turns  her  away ;  yet  she  shall  be  said  morari  cum  adultero, 
within  the  act.  (a)1 

6.  He  further  observes,  that  if  a  woman  who  has  eloped  from 
her  husband  with  an  adulterer,  is  afterwards  reconciled,  and  co- 
habits with  her  husband,  by  coercion  of  the  church,  yet  she  will 
be   barred   of  her   dower.     And   if  a  woman  goes  away  with 

another  man,  with  her  husband's  consent,  and  afterwards 
176  *    that  man  *  commits  adultery  with  her,  and  she  remains 

with  him,  without  being  reconciled  to  her  husband,  she 
shall  be  barred  of  her  dower.  (6)f 

7.  There  is  a  curious  case  in  the  Rolls  of  Parliament,  30 
Edward  I.,  where  a  man  by  deed  granted  his  wife  to  another, 
with  whom  she  eloped  and  lived  in  adultery.  It  was  determined, 
1.  That  it  was  a  void  grant.  2.  That  it  did  not  amount  to  a 
license,  or  at  least  was  a  void  license.  3.  That  after  elopement 
there  should  not  be  any  averment  quod  non  fuit  adulterium, 
though  she  married  the  adulterer  after  her  first  husband's  death  ; 
therefore  that  she  was  barred  of  dower.  A  sentence  of  purga- 
tion of  adulrery  in  the  ecclesiastical  court  was  also  produced,  but 
it  was  not  allowed  to  have  any  effect,  (c) 

8.  Where  the  friends  of  the  husband  removed  him  from  his 
wife,  published  that  he  was  dead,  and  persuaded  the  wife  to 
marry  another  man,  though  the  wife  lived  in  adultery  ;  yet  inas- 
much as  non  reliquit  virum  sponte,  it  was  held  that  she  did  not 
forfeit  her  dower,  (d) 

(a)  2  Inst.  435,  436.     Co.  Lit.  32.  a.  &  n.  9.     lb.  33.  (J)  2  Inst.  435. 

(c)  Rot.  Pari.  vol.  1.  146.    2  Inst.  436.     Coot  v.  Berry,  12  Mod.  232.  S.  P. 

(d)  Green  v.  Harvey,  1  Roll.  Ab.  6 SO. 

1  Sponte  virum  mulier  fugiens,  ct  adulter  a  facta, 
Dote  sua  careat,  nisi  sponsi  sponte  retracta. — 1  Inst.  32,  b. 
[t  The  husband  will  not  be  obliged  to  take  his  wife  back  again  after  she  has  eloped 
from  him  and  committed  adultery.     6  T.  E.  603.] 


Title  VI.     Dower.     Ch.  IV.  s.  9—12.  209 

9.  With  respect  to  the  circumstances  necessary  to  prove  a  vol- 
untary reconciliation  by  the  husband,  Lord  Coke  says,  cohabita- 
tion is  not  sufficient,  without  reconciliation  made  by  the  husband 
sponte ;  so  that  cohabitation  only  in  the  same  house  with  the 
husband  will  not  avail.  But  in  the  following  case,  cohabitation 
as  man  and  wife  appears  to  have  been  held  a  sufficient  proof  of 
reconciliation,  (a) 

10.  Reconciliation  being  pleaded,  evidence  was  given  that  the 
husband  and  wife  had,  after  the  elopement,  slept  together  several 
nights,  and  in  divers  places,  and  demeaned  themselves  as  man 
and  wife.  It  was  objected  that  they  never  lived  together  in  one 
house,  but  were  apart ;  and  the  wife  continued  in  adultery  with 
one  or  more,  during  the  life  of  her  husband,  sed  non  allocatur ; 
for  there  might  have  been  divers  elopements,  and  divers  recon- 
ciliations ;  and  the  defendant  ought  to  take  issue  on  one  at  his 
peril,  (b) 

11.  Detinue  of  charters  is  another  cause  of  the  loss  of  dower.1 
For  if  in  a  writ  of  dower  the  tenant  pleads  that  the  demandant 
detains  the  charters  of  the  estate,  and  she  denies  the  fact,  which 
is  found  against  her,  she  shall  lose  her  dower.   But,  1.  The 

*  charters  ought  to  relate  to  the  land  whereof  dower  is  *  177 
demanded.  2.  He  who  pleads  this  plea  ought  to  show 
the  certainty  of  the  charters ;  whereupon  a  certain  issue  may  be 
joined,  as  that  they  are  in  a  chest  or  box,  locked  or  sealed,  which 
imports  sufficient  certainty.  3.  No  stranger,  though  he  be  tenant 
to  the  land,  and  has  the  evidences  conveyed  to  him,  can  plead 
this  plea,  (c) 

12.  In  several  cases  the  heir  is  in  the  degree  of  a  stranger,  and 

(a)  2  Inst.  436.  (b)  Haworth  v.  Herbert,  Dyer,  106.     2  Inst.  436. 

(c)  Bcdingfield's  case,  9  Rep.  15.     Dyer,  250.  a. 

1  This  plea  is  dilatory,  admitting  the  title  of  the  plaintiff,  but  alleging  that  she 
detains  the  deeds  and  evidences  of  the  estate,  so  that  he  is  ignorant  of  the  lands ;  and 
that  the  defendant  was  always  ready  to  assign  the  dower,  if  she  would  deliver  them. 
Hence,  it  cannot  be  pleaded,  first,  if  the  heir  holds  by  purchase,  and  not  by  descent ; 
for  then  there  is  no  privity  in  estate,  nor  can  he  be  said  to  be  ignorant  of  what  he  ought 
to  assign.  Secondly,  if  the  widow  received  the  deeds  by  delivery  from  the  defendant 
himself.  Thirdly,  if  the  heir  comes  in  as  vouchee  of  the  tenant;  or,  as  vouchee  having 
no  lands  in  the  county ;  or,  as  tenant  by  receipt ;  for  such  vouchee  or  tenant  cannot 
render  dower.  9  Rep.  18  b;  Park  on  Dower,  295.  If  the  wife  surrenders  the  charters, 
she  may  have  judgment.     Hob.  199. 

18* 


210  Title  VI.     Bower.     Ch.  IV.  s.  12— 14. 

therefore  shall  not  plead  detinue  of  charters.  1.  If  the  heir  has 
the  land  by  purchase.  2.  If  he  has  delivered  the  charters  to  the 
widow ;  for  then  she  has  them  by  his  own  act.  3.  If  the  heir 
be  not  immediately  vouched.  4.  If  he  comes  in  as  vouchee. 
5.  If  he  comes  in  as  tenant  by  receipt.  The  reason  is  manifest, 
if  the  true  form  of  pleading  in  that  case  be  observed ;  for  he  who 
pleads  detinue  of  charters,  in  bar  of  dower,  ought  to  plead  that 
he  has  been  always  ready,  and  yet  is,  to  render  dower,  if  the 
demandant  would  deliver  to  him  his  charters,  (a) 

13.  If  a  woman  joins  with  her  husband  in  levying  a  fine,  or 
suffering  a  common  recovery,  of  lands  whereof  she  is  dowable, 
she  will  thereby  effectually  bar  herself  from  claiming  dower  out 
of  those  lands.  The  principles  upon  which  this  doctrine  is 
founded  will  be  explained  hereafter.  (&) 

(14.  In  the  United  States,  the  usual  method  of  barring  dower, 
by  the  voluntary  act  of  the  wife,  is,  by  her  joining'  with  her 
husband  in  a  deed  of  conveyance  of  the  land,  containing  apt 
words  of  release  of  dower  on  her  part;  acknowledged  by  her 
before  a  magistrate,  in  the  mode  prescribed  by  the  statutes  of 
the  respective  States ;  the  manner  of  authenticating  her  act  not 
being  everywhere  the  same.  This  practice  is  probably  coeval 
with  the  settlement  of  the  country ;  and  has  been  supposed  to 
have  originated  in  Massachusetts,  from  the  colonial  ordinance  of 
1644.  If  she  was  not  of  full  age  at  the  time  of  executing  the 
deed,  or  if  the  deed  does  not  contain  apt  words,  showing  her  in- 
tention to  relinquish  her  dower,  she  will  not  be  barred  therefrom, 
though  she  has  signed  and  sealed  the  deed,  and  made  the  statute 
acknowledgment.1) 

(a)  Burdon  v.  Burdon,  1  Salk.  252.  (6)  Tit.  35,  36. 

1  4  Kent,  Comm.  59  ;  Catlin  v.  Ware,  9  Mass.  218 ;  Powell  v.  Monson.  3  Mason, 
347,  351 ;  Hall  v.  Savage,  4  Mason,  273;  Leavitt  v.  Lamprey,  13  Tick.  382;  Priest  v. 
Cummings,  16  Wend.  617;  Markham  v.  Merrett,  7  How.  Miss.  437;  Thomas  v.  Gam- 
mel,  6  Leigh,  9 ;  Post,  tit.  32,  ch.  21,  §  10,  note. 

Where  the  statute  has  directed  the  form  of  the  acknowledgment,  it  must  be  strictly 
pursued,  or  the  act  of  relinquishment  will  be  void.  Kirk  v.  Dean,  2  Binn.  341  :  Thomp- 
son v.  Morrow,  5  S.  &  R.  289 ;  Sheppard  v.  Wardell,  Coxe,  R.  452  ;  Clarke  v.  Red- 
man, 1  Blackf.  379;  Scanlan  v.  Turner,  1  Bail.  421. 

In  Neio  Hampshire,  if  the  wife  is  insane  at  the  time  of  alienation  by  the  husband,  he 
may  be  licensed  by  the  Judge  of  Probate  to  convey  so  as  to  bar  her  right  of  dower. 
Stat.  1851,  ch.  1097.  [By  immemorial  custom  in  New  Hampshire,  a  wife  may  bar  her 
dower  in  land  by  executing  her  husband's  deed  thereof,  without  apt  words  of  release. 
Dustin  v.  Steele,  7  Foster,  N.  H.  431.     And  see  Burge  v.  Smith,  lb.  332.] 


Title  VI.     Bower.     Ch.  IV.  s.  15—17.  211 

15.  By  the  custom  of  London  a  married  woman  may  bar  her- 
self of  dower,  by  a  deed  of  bargain  and  sale,  acknowledged  be- 
fore the  lord-mayor,  or  the  recorder  and  one  alderman,  and 
enrolled  in  the  court  of  hustings  ;  the  wife  being  examined  sep- 
arately from  her  husband,  as  to  her  consent,  (a) 

16.  The  most  usual  mode  of  barring  dower,  in  modern  times, 
is  by  means  of  a,  jointure  settled  on  the  wife  before  marriage  ;  of 
which  an  account  will  be  given  in  the  next  title. 

(17.  But  it  may  in  this  place  be  remarked,  that,  though  the 
wife's  dower  may  be  barred  by  a  jointure,  yet  her  antenuptial 
covenant,  in  a  marriage  settlement,  never  to  claim  dower,  will 
not  have  that  effect,  even  though  it  contain  an  agreement  that  it 
may  be  pleaded  in  bar  of  any  action  of  dower,  unless  the  consid- 
eration on  which  the  covenant  was  founded  has  been  performed. 
Thus,  where,  by  an  antenuptial  indenture,  the  husband  settled 
an  annuity  on  the  wife  for  her  life,  and  she  covenanted  never  to 
claim  dower  in  his  estate  ;  and  he  afterwards  died  insolvent ;  it 
was  held  that  the  covenant  could  not  be  set  up  by  way  of  de- 
fence to  her  claim  of  dower ;  for  being  of  a  future  interest,  it 

(a)  Bohun,  Priv.  Lond. 


After  a  sufficient  lapse  of  time,  a  release  of  dower  by  the  wife  may  be  presumed. 
Barnard  v.  Edwards,  4  N.  Hamp.  321  ;  Evans  v.  Evans,  3  Yeates,  507. 

[The  wife  cannot  by  any  agreement  between  herself  and  husband,  made  during 
coverture,  bar  herself  of  dower.  Martin  v.  Martin,  22  Ala.  86.  A  quit-claim  deed 
from  two  grantors,  signed  and  sealed  by  each  of  them,  and  signed  by  their  wives,  with 
but  one  seal  against  both  signatures,  and  concluding  after  the  release  of  dower,  "  In 
witness  whereof  we  the  grantors  have  hereunto  set  our  hands  and  seals,"  is  sufficient  to 
bar  the  dower  of  the  wives.  Tasker  et  al.  v.  Bartlett,  5  Cush.  359.  See  also  Dundas 
v.  Hitchcock,  12  How.  U.  S.  251.  The  deed  of  a  married  woman,  executed  by  her 
alone,  relinquishing  her  dower  in  land  previously  conveyed  by  her  husband  by  his 
separate  deed,  does  not  bar  her  dower  therein.  Page  v.  Page,  6  Cush.  196  ;  French  v. 
Peters,  33  Maine,  (3  Red.)  396  ;  Witter  v.  Briscoe,  8  Eng.  422.  Nor  is  a  widow  barred 
of  her  claim  of  dower  against  a  mortgagee  who  has  foreclosed,  she  not  joining  in  the 
mortgage,  by  a  release  of  her  dower,  to  the  purchaser  of  the  equity  of  redemption. 
Littlcfield  v.  Crocker,  30  Maine,  (17  Shep.)  192.  Where  a  wife  has  barred  herself  of 
her  right  of  dower  by  joining  in  a  mortgage  with  her  husband,  she  can  be  restored  to 
her  right  of  dower,  if  the  mortgage  is  extinguished  by  her  husband,  or  by  some  one  in 
his  right,  or  by  a  redemption  by  payment  of  the  debt  herself.  Brown  v.  Lapham,  3 
Cush.  551,  554.  A  husband  made  three  mortgages  of  his  premises.  His  wife  joined, 
in  release  of  her  dower,  only  in  the  second  mortgage.  The  third  mortgagee  paid  the 
first  and  second  mortgages ;  and  the  wife  became  thus  entitled  to  dower  in  the  whole 
land.  Wedge  v.  Moore,  6  Cush.  8.  See  also  Young  v.  Tarbell,  37  Maine,  509  ;  Smith 
v.  Stanley,  lb.  11;  Hastings  v.  Stevens,  9  Foster,  564.] 


212  Title  VI.     Dower.     Ch.  IV.  s.  17—18. 

was  not  technically  a  release ;  and  the  consideration  or  condition, 
apparent  on  the  face  of  the  instrument,  not  having  been  per- 
formed, it  could  not  operate  either  as  an  estoppel  or  by  way  of 
rebutter.1) 

[18.  A  legal  term  of  years  created  before  the  title  of  dower 
attached,  will,  if  assigned  to  a  trustee  for  a  purchaser,  be  a  pro- 
tection against  the  dower  of  the  vendor's  wife,  whose  claim  will 
be  barred  by  a  cesset  executio  during  the  term.  The  Court  has 
even  compelled  the  widow  herself,  in  whom  the  term  happened 
to  vest  by  the  death  of  the  trustee,  to  assign  the  term  to  the  pur- 
chaser's trustee,  to  the  exclusion  of  her  own  dower. 

Thus,  in  Mole  v.  Smith,  the  freehold  estate  of  Watson,  a 
bankrupt,  was  sold  by  the  assignees  to  Smith,  who  entered  into 
possession  under  the  contract,  and  afterwards  filed  his  bill  against 
the  assignees,  the  bankrupt,  and  his  wife,  for  specific 
178  *  *  performance,  and  an  assignment  of  three  terms,  which, 
upon  the  bankrupt's  purchase,  had  been  assigned  to  Yel- 
lowly  to  attend.  The  terms  happened  to  vest  in  the  bankrupt's 
wife  as  surviving  administratrix  of  Yellowly.  Upon  the  bank- 
rupt's death  his  widow  claimed  her  dower,  and  insisted  that  she 
ought  not  to  be  compelled  to  assign  the  terms  vested  in  her  to  a 
trustee  for  the  purchaser  as  a  protection  against  her  dower.  Sir 
Thomas  Plumer,  M.  R.,  expressed  considerable  doubt  whether 
the  Court  could  compel  her  to  assign  the  term.  The  cause  came 
on  again  before  Lord  Eldon,  C,  on  the  4th  of  April,  1822.  The 
following  were  the  reasons  of  his  lordship's  decision  ;  that  the 
husband,  before  his  bankruptcy  and  in  his  lifetime,  might  have 
compelled  the  administrator  of  Yellowly  to  assign  the  terms  to 
a  trustee  for  the  purchaser  ;  that  the  purchaser  would  have  been 
entitled  to  call  for  such  assignment  in  order  to  protect  himself 
from  the  claim  of  the  wife's  dower ;  that  the  assignees  for  the 
benefit  of  the  creditors  were  entitled  as  fully  as  the  bankrupt 
himself;  and  that  the  widow,  as  administrator  of  Yellowly,  could 
not  make  any  use  of  the  terms  for  her  own  benefit,  which  she 


i  Hastings  v.  Dickinson,  7  Mass.  153  ;  Gibson  v.  Gibson,  15  Mass.  106,  110;  Vance 
v.  Vance,  8  Shepl.  364.  [Vincent  v.  Spooner,  2  Cush.  467.  An  agreement  to  receive 
a  fixed  sum  of  money  annually  in  lieu  of  dower,  does  not  bar  a  widow  from  claiming 
dower,  if  the  sum  be  not  paid.  Sargent  v.  Roberts,  34  Maine,  (4  Red.  135.)  See. 
also,  Furber  v.  Chamberlain,  9  Foster,  N.  H.  405.] 


Title  VI.     Dower.     Ch.  IV.  5.  18—21.  213 

could  not  have  compelled  Yellowly  himself  to  make.  His  lord- 
ship accordingly  declared,  that  as  the  trustee,  Yellowly  (whom 
the  bankrupt's  widow  represented)  would,  if  living,  have  been 
compelled  by  the  assignees  to  assign  the  terms  to  a  trustee  for 
the  purchaser,  in  order  to  carry  the  contract  into  effect,  the  widow 
was  also  compellable  to  assign  them,  (a) 

But  as  between  the  widow  and  the  heir  and  devisee  of  her 
husband,  she  will  not  be  excluded  by  the  term,  which  is  as  much 
attendant  upon  her  dower,  as  upon  the  remaining  interest  in  the 
inheritance,  and  she  will  be  entitled  to  the  benefit  of  it.]  (b) 

19.  Every  devise  or  bequest  in  a  will  imports  a  bounty ;  and 
therefore  cannot  in  general  be  averred  to  be  given  as  a  satisfac- 
tion for  that  to  which  the  devisee  is  by  law  entitled.  In  con- 
sequence of  this  principle,  a  devise  cannot  be  averred  even  in 
equity,  to  be  in  satisfaction,  of  dower,  unless  it  is  so  expressed l 
in  the  will.  1.  Because  a  devise  implies  a  consideration  in  itself ; 
and  cannot  be  averred  to  be  for  the  use  of  any  other  person  than 
the  devisee,  unless  it  is  so  expressed  in  the  will ;  no  more  can  a 
devise  be  averred  to  be  in  satisfaction  of  dower,  unless  it  is  so 
expressed.     2.  As  all  wills  of  land  must  be  in  writing,  no 

*  averment  respecting  the  intention  of  a  testator  is  admis-     *  179 
sible,  which   cannot  be  collected  from  the  words  of  the 
will  itself,  (c) 

20.  A  person  being  indebted,  devised  part  of  his  lands  to  his 
wife,  but  did  not  mention  it  to  be  in  bar  of  dower ;  and  devised 
the  residue  to  his  executors,  till  his  debts  were  paid.  The  wife 
brought  a  writ  of  dower,  and  recovered  her  dower.  The  heir 
filed  a  bill  in  chancery  against  her,  to  be  relieved.  The  Court 
said  the  devise  was  not  to  be  looked  upon  as  a  recompense  or 
bar  of  dower,  but  as  a  voluntary  gift,  (d) 

21.  If  a  husband  devises  lands  to  his  wife  during  her  widow- 
hood only,  or  restrains  the  devise  in  any  other  manner,  so  as  to 
render  it  less  beneficial  than  dower,  a  court  of  equity  will  not 
interfere;  but  the  wife  will  be  allowed  to  take  both  the  thing 
devised,  and  also  her  dower. 

(a)  1  Jac.  &  Walk.  665.     1  Jac.  490. 

(6)  Tit.  12.  ch.  3.  s.  44.    Maundrell  v.  Maundrell,  7  Ves.  567.    10  Ves.  246. 
(c)  1  Inst.  36.  b.  Vernon's  case,  4  Rep.  4.  a.    Tit.  38.  c.  1.   See  also  3  &  4  Will.  4.  c.  105. 
s.  9  10.  supra,  p.  161,  note.    Tit.  38.  c.  9.  (d)  Hitchin  v.  Hitchin,  Prec.  in  Cha.  133. 


i  Or  clearly  implied.     Birmingham  v.  Kirwan,  2  Sch.  &  Lefr.  444,  452  ;  Hitchin  v. 
Hitchin,  Prec.  Chan.  133.    See  farther  on  this  subject,  post,  §  24,  note. 


214  Title  VI.     Dower.     Ch.  IV.  s.  22—23. 

22.  W.  Lawrence  devised  lands  of  the  annual  value  of  ,£130 
to  his  wife,  during  her  widowhood.  After  the  determination  of 
that  estate,  he  devised  the  same  premises,  together  with  all  his 
other  lands,  to  trustees,  for  a  term  of  twenty-four  years,  to  com- 
mence from  his  decease,  in  trust  for  the  payment  of  his  debt  and 
legacies.  As  a  farther  provision  for  his  wife,  he  directed  that 
after  two  years  of  the  term  were  expired,  his  trustees  should 
permit  her  to  receive  the  rents  and  profits  of  another  farm  of  <£90 
per  annum,  for  the  remainder  of  the  said  term  of  twenty-four 
years,  so  long  as  she  should  continue  a  widow.  The  widow  en- 
tered upon  the  lands  devised  to  her,  and  afterwards  brought  a 
writ  of  dower,  to  which  was  pleaded  the  devise,  with  an  aver- 
ment that  the  same  was  in  satisfaction  of  her  dower.  Upon  de- 
murrer to  this  plea,  judgment  was  given  for  the  demandant,  (a) 

A  bill  was  then  exhibited  in  Chancery,  to  be  relieved  from 
this  judgment ;  and  a  perpetual  injunction  was  at  first  decreed 
against  the  widow;  but,  on  a  rehearing,  this  decree  was  re- 
versed, (b) 

On  an  appeal  from  this  last  decree  to  the  House  of  Lords,  it 
was  contended  for  the  appellant,  that  it  would  be  against  the 
rules  of  natural  equity  and  justice,  if  the  respondent  should  be 
permitted  to  enjoy  the  estates  devised  to  her  by  her  husband's 
will,  and  at  the  same  time  disappoint  his  intention,  by  insisting 
on  her  dower;  for  which  the  lands  devised  were  far  from  an 
equivalent.  On  the  other  side,  it  was  said  to  be  nowhere 
expressed,  nor  to  be  collected  from  the  words  of  the  will,  that 
the  lands  devised  to  the  respondent  were  for  her  jointure,  or  in 
bar  of  her  dower;  neither  could  it  be  so  averred  at  law,  or  in  a 
court  of  equity  ;  she  having  no  estate  for  life,  but  for  her  widow- 
hood only.     The  decree  of  reversal  was  affirmed,  (c) 

23.  A  person  devised  lands  to  his  wife  for  life,  and  devised 
other  lands  to  his  brother  and  his  heirs.  The  wife  entered  into 
the  lands  devised  to  her,  which  were  of  more  value  than  her 
dower  ;  she  afterwards  claimed  dower  of  the  rest,  and  had  judg- 
ment. The  brother  brought  his  bill  in  Chancery  to  be  relieved. 
The  case  of  Lawrence  and  Lawrence  was  cited  for  the  defend- 
ant, to  prove  that  the  wife  should  have  dower,  notwithstanding 

(a)  Lawrence  v.  Lawrence,  1  Ld.  Eaym.  438.    2  Freem.  234.    3  Bro.  P.  C.  483. 

(b)  2  Vera.  365.    1  At).  Eq.  218.  (c)  1  Bro.  Pari.  Ca.  591. 


Title  VI.     Bower.    Ch.  IV.  s.  23—24.  215 

a  devise  to  her  for  life  of  lands  by  her  husband  ;  unless  declared 
to  be  in  lieu  and  satisfaction  of  dower.  Lord  Parker  said  that 
this  point  had  been  determined  in  the  House  of  Lords ;  and  dis- 
missed the  bill,  (a) 

24.  If  it  be  said  in  the  will  that  the  devise  is  made  in  lieu  and 
satisfaction  of  dower,  or  on  condition  that  the  wife  shall 
not  *  claim  dower ;  then  the  wife  cannot  have  both,  for  *  181 
that  would  be  repugnant  to  the  intention  of  the  testator. 
The  wife  must,  therefore,  in  such  a  case  make  her  election.  (b)-\  l 

(a)  Lemon  v.  Lemon,  8  V:n.  Ab.  366.     Incledon  v.  Northcote,  3  Atk.  430. 
(0)  Leake  v.  RandaU,  4  Rep.  4.  a. 

[tBut  see  Stat.  3  &  4  Will.  4,  c.  105,  s.  9,  10,  12.] 

1  [A  husband  by  will  made  certain  provisions  for  his  wife,  declaring  them  to  be  "  in 
lieu  of  her  dower  or  other  interest  in  my  estate."  And  after  making  the  will  acquired 
other  real  estate.  The  widow  having  elected  to  accept  the  provisions  of  the  will,  was 
thereby  barred  of  her  dower  in  the  after- acquired  estates.  Chapin  v.  Hill,  1  Rhode 
Island,  446.] 

In  several  of  the  United  States,  it  is  expressly  enacted  that  a  provision  made  for  the 
wife  by  the  will  of  her  husband  shall,  in  certain  cases,  bar  her  dower. 

As  to  the  nature  of  the  provision,  by  the  laws  of  some  States,  any  pecuniary  provision 
is  sufficient.  See  Maine,  Rev.  St.  ch.  95,  §  10—13;  Massachusetts,  Rev.  St.  ch.  60, 
§  8—11 ;  Indiana,  Rev.  St.  1843,  ch.  28,  §  101 ;  New  York,  Rev.  St.  Vol.  II.  p.  27,  3d 
ed.;  Arkansas,  Rev.  St.  1837,  ch.  52,  §  9—23 ;  LL.  Maryland,  Vol.  I.  p.  406,  Dorsey's 
ed.;  Tennessee,  Stat.  1784,  ch.  22,  §  8;  LL.  North  Carolina,  Vol.  I.  p.  612;  Alabama, 
Toulm.  Dig.  p.  258;  Michigan,  Rev.  St.  1S38,  p.  264  ;  Illinois,  Rev.  St.  1839,  p.  696  ; 
Mississippi,  How.  &  Hut.  Dig.  p.  350 ;  Connecticut,  Rev.  St.  1838,  p.  189  ;  Vermont, 
Rev.  St.  1839,  p.  51. 

In  New  Jersey,  Elm.  Dig.  p.  145,  and  in  Delaware,  Rev.  St.  1829,  p.  168,  and  in  Mis- 
souri, Rev.  St.  1845,  ch.  54,  §  11,  it  is  provided  that  any  devise  of  lands  shall  have  this 
effect. 

As  to  the  intent  of  the  testator,  it  is  conceived  that  these  statutes  have  not  changed  the 
rule  of  law,  requiring  evidence  that  the  provision  was  intended  in  lieu  of  dower.  In 
the  laws  of  Vermont,  Connecticut,  New  York,  Arkansas,  Indiana,  Maine,  Massachusetts, 
Virginia,  and  Kentucky,  (1  LL.  Ky.  575,)  it  is  expressly  required  that  the  provision,  to 
constitute  a  bar,  must  be  made  in  "  lieu  of  dower."  But  the  method  of  ascertaining  the 
intent  is  different,  in  different  States.  In  some  States,  the  provision,  whatever  it  be,  is 
taken  to  be  intended  in  lieu  of  dower,  "unless  it  be  otherwise  expressed  in  the  will." 
Such  is  the  law  of  Mississippi,  How.  &  Hut.  Dig.  p.  350 ;  and  of  Maryland,  LL. 
Mary].  Vol.  I.  p.  406,  Dorsey's  ed. ;  and  of  Delaware,  Rev.  St.  1829,  p.  168  ;  and  of 
Illinois,  Rev.  St.  1839,  p.  696  ;  and  of  Arkansas,  Rev.  St.  1837,  ch.  52,  §  23.  In  these 
cases,  the  claim  of  the  wife  is  prima  facie  barred  by  the  bare  fact  that  the  requisite  pro- 
vision is  made ;  and  the  burden  is  on  her  to  take  the  case  out  of  the  operation  of  the 
rule.  In  the  statutes  of  other  States,  the  language  is  not  quite  as  strong,  the  rule  being 
that  the  wife  shall  not  take  both  the  devise  or  bequest  and  also  her  dower,  "  unless  it 
appears  by  the  will  that  the  testator  plainly  so  intended."  See  Maine,  Rev.  St.  ch.  '.).">. 
§  13  ;  Massachusetts,  Rev.  St.  ch.  60,  §  11 ;  Michigan,  Rev.  St.  1846,  p.  269  ;  Indiana, 


216  Title  VI.    Dower.     Ch.  IV.  s.  25. 

25.  A  man  devised  the  third  part  of  his  lands  to  his  wife,  in 
recompense  of  her  dower.  The  wife  entered  on  the  lands  de- 
Bey.  St.  1843,  ch.  28,  §  101.  In  Virginia,  where  the  conveyance  of  lands  only,  by  deed 
or  will,  is  permitted  to  defeat  the  right  of  dower,  the  husband's  intention  may  either  be 
shown  by  the  deed  or  will,  or  be  averred  and  .proved  by  parol.  Tate's  Dig.  p.  176 ; 
Ambler  v.  Norton,  4  Hen.  &  Munf.  23  ;  Herbert  v.  Wren,  7  Cranch,  377. 

As  to  the  election  of  the  wife  to  take  the  provision  thus  made  for  her,  or  to  claim  her 
dower,  it  is  understood  to  be  conceded  to  her  in  all  the  States  ;  restricted  only  in  the 
time  and  manner  of  its  exercise.  In  most  of  the  States,  a  period  is  fixed  by  law,  within 
which  she  must  elect  whether  to  accept  the  provision  made  in  lieu  of  dower,  or  to  insist 
upon  her  general  right  at  law  ;  and  failing  to  renounce  the  provision,  in  the  manner 
prescribed,  she  is  conclusively  deemed  to  have  accepted  it.  In  Delaware,  she  must 
make  her  election  on  a  day  assigned  in  the  particular  case,  by  the  Orphans'  Court. 
Del.  Rev.  St.  1829,  p.  168.  In  Connecticut,  it  must  be  done  within  two  months  after  the 
time  limited  by  the  Probate  Court  for  bringing  in  claims  against  the  estate.  In  Maine, 
Massachusetts,  New  Jersey,  North  Carolina,  Tennessee,  Illinois,  Maryland,  and  Mississippi, 
six  months  are  allowed,  computing  from  the  time  of  the  probate  of  the  will.  In  Ver- 
mont, it  is  eight  months  ;  and  in  Rhode  Island,  Alabama,  and  Missouri,  it  is  twelve 
months,  from  the  same  period.  In  Indiana,  Virginia,  Arkansas,  Michigan,  and  New 
York,  one  year  is  allowed,  computing  from  the  death  of  the  husband.  In  the  last  three 
States,  her  election  must  be  evinced  either  by  entry  on  the  lands  to  be  assigned  for  her 
dower,  or  by  commencing  process  for  the  recovery  thereof.  In  Indiana,  the  lapse  of  the 
year  is  not  conclusive,  unless  she  also  had  knowledge  of  the  provision  made  for  her. 
Ind.  Rev.  St.  1843,  ch.  28,  §  102.  [But  if  a  widow  accept  a  provision  made  for  her  by 
will,  in  lieu  of  dower,  without  full  knowledge  of  the  extent  of  such  provision,  and  of 
her  own  legal  rights,  she  may  renounce  the  provision  so  made  and  claim  dower,  even 
after  the  lapse  of  years.  United  States  v.  Duncan,  4  McLean,  99  ;  see  also  Sisk  v. 
Smith,  1  Gilm.  514  ;  and  Tooke  v.  Hardeman,  7  Geo.  20.  And  this,  notwithstanding 
the  statute  of  Illinois  declaring  that  any  provision  in  a  will  bars  dower,  unless  ex- 
pressed otherwise  in  the  will,  and  unless  the  widow  in  six  months  renounces  the 
provision.] 

For  the  particular  exposition  of  these  statutes  the  student  is  referred  to  the  following 
cases  :— In  Pennsylvania,  Evans  v.  Webb,  1  Yeates,  24 ;  Sample  v.  Sample,  2  Yeates, 
433;  McCulloch  v.  Allen,  3  Yeates,  10:  Creacraft  v.  Wions,  Addis.  350;  Duncan  v. 
Duncan,  2  Yeates,  302  ;  Hamilton  v.  Buckwalter,  lb.  389  ;  Allen  v.  Allen,  2  Pennsylv. 
310;  Cauffman  v.  Cauffman,  17  S.  &  R.  16;  Webb  v.  Evans,  1  Binn.  565;  [Ulp  v. 
Campbell,  19  Penn.  (7  Harris,)  361  ;  Light  v.  Light,  21  lb.  (9  Harris,)  407  ;  Borland 
v.  Nichols,  12  lb.  (2  Jones,)  38.]  In  New  York,  Jackson  v.  Churchill,  7  Cowen,  287  ; 
Larrabee  v.  Van  Alstyne,  1  Johns.  30  ;  Kennedy  v.  Mills,  13  Wend.  553  ;  Van  Orden 
v.  Van  Orden,  10  Johns.  30.  [In  Maryland,  Collins  v.  Carman.  5  Md.  Ch.  Dccis. 
503.]  In  Massachusetts  and  Maine,  Merrill  v.  Emery,  10  Pick.  507 ;  Reed  v.  Dickerman, 
12  Pick.  146  ;  Perkins  v.  Little,  1  Greenl.  148 ;  Thompson  v.  McGaw,  1  Met.  66.  [Has- 
tings v.  Clifford,  32  Maine,  132;  Gowen,  Appellant,  32  Maine,  516  ;  Adams  v.  Adams, 

5  Met.  277  ;  Pratt  v.  Eelton,  4  Cush.  174.]     See  also,  Leinaweaver  v.  Stoever,  1  Watts 

6  Serg.  160;  White  v.  White,  1  Harr.  202;  Thompson  v.  Egbert,  2  Harr.  459;  Da- 
vison v.  Davison,  3  Green,  235  ;  Pickett  v.  Peay,  3  Brev.  545  ;  Green  v.  Green,  7  Port. 
19;  McLeod  v.  McDonnel,  6  Ala.  R.  236;  ex  parte  Moore,  7  How.  Miss.  R.  665; 
Boone  v.  Boone,  3  Har.  &  McH.  95  ;  Ambler  v.  Norton,  4  Hen.  &  Munf.  23  ;  Pettijohn 
v.  Beasley,  1  Dev.  &  Batt.  254;  [Jones  v.  Jones,  Bus.  (N.  C)  177;  Sisk  v.  Smith,  1 
Gilm.  514.] 


Title  VI.     Dower.     Ch.  IV.  s.  25—30.  217 

vised  to  her;  it  was  resolved  that  she  was  thereby  barred  of 

dower,  (a) 

26.  A  person  devised  his  lands  to  his  wife  till  P.,  his  daughter, 
attained  the  age  of  nineteen,  afterwards  to  P.  in*  tail,  remainder 
over  in  fee.  He  devised  further,  that  P.  should  pay,  after  her 
age  of  nineteen,  £12  per  annum  to  his  wife  in  recompense  of 
her  dower ;  if  she  failed  of  payment,  that  his  wife  should  have 
the  land  for  her  life.  The  wife,  before  P.  attained  nineteen, 
brought  a  writ  of  dower,  and  recovered  a  third  part ;  after  P. 
attained  nineteen,  the  wife  entered  for  non-payment  of  the  £12. 
The  question  was  whether  her  entry  was  lawful.  It  was 
adjudged,  that  the  wife,  having  recovered  a  third  part  in  dower, 
she  should  not  have  the  rent ;  as  it  was  against  the  intention  of 
the  testator  that  she  should  have  both ;  that  the  acceptance  of 
the  one  was  a  waiver  of  the  other.  And  upon  a  writ  of  error 
this  judgment  was  affirmed,  (b) 

27.  A  man  devised  his  personal  estate  to  trustees,  in  trust  that 
his  widow  should  receive  thereout  £100  a  year  during  her  life, 
in  lieu  and  discharge  of  her  dower.  The  wife  received  this 
annuity  for  many  years,  then  brought  a  writ  of  dower.  Decreed 
that  the  wife  was  barred  of  dower,  as  long  as  the  personal  estate 
was  sufficient,  (c) 

28.  With  respect  to  the  acts  which  will  amount  to  an  election, 
and  the  time  within  which  they  must  take  place,  they  will  be 
stated  hereafter,  (d) 

29.  Notwithstanding  the  doctrine  established  in  the  case  of 
Lawrence  v.  Lawrence,  and  jthe  frequent  recognition  of  it,  de- 
vises have  been  sometimes  deemed  a  satisfaction  in  equity  for 
dower,  on  account  of  strong  and  special  circumstances.  As 
where  allowing  a  widow  to  take  a  double  provision,  would  be 
quite  inconsistent  with  the  dispositions  of  the  will. 

30.  A  person  devised  to  his  wife  an  annuity  of  £200  a  year, 
to  be  issuing  out  of  his  lands,  with  the  power  of  distress 

and  *  entry  ;  subject  thereto,  he  devised  his  real  estates  to    *  182 
his  daughter  in  strict  settlement ;  and  directed  all  his  per- 
sonal  estate  to  be  invested  in  land,  and  settled  to  the   same 
uses,  (e) 

(a)  Bush's  case,  Dyer,  220.  (6)  Gosling  v.  Warburton,  Cro.  Eliz.  128. 

(c)  Lesquire  v.  Lesquire,  Finch.  134.  (d)  Tit.  38.  c.  2. 

(e)  Villa  Keal  v.  Galway,  1  Bro.  C.  C.  292.  note,  Amb.  682. 
VOL.    I.  19 


218  Title  VI.     Bower.     Ch.  IV.  s.  30—33. 

One  of  the  questions  in  this  case  was,  whether  the  wife  was 
to  take  this  annuity  in  satisfaction  of  her  dower  or  not.  (And 
Lord  Camden  was  of  opinion  that  the  claim  of  dower  would  dis- 
appoint the  will,  and  was  inconsistent  with  it ;  for  it  went  to  put 
the  trustees  put  of  possession  of  the  portion  of  land  claimed  as 
dower,  and  also  to  diminish  the  annuity  itself  contrary  to  the  in- 
tent of  the  testator,  by  taking  away  a  part  of  the  source  from 
which  it  was  derived.  He,  therefore,  decreed  that  the  widow 
must  make  her  election.)  (a) 

31.  There  are,  however,  several  modern  cases,  where  a  devise 
of  an  annuity  to  a  wife,  either  entirely  or  partly  charged  on  the 
estates  of  which  she  is  dowable,  together  with  the  gift  of  those 
estates  to  another,  or  a  devise  of  them  to  trustees,  has  been  held 
not  to  be  a  satisfaction  of  dower,  but  the  widow  has  been 
allowed  to  have  both,  (b) 

32.  A  bequest  of  the  residue  of  personal  estate  will  not  be  con- 
sidered as  a  bar  to  dower. 

33.  A  man,  by  his  will,  taking  notice  of  his  wife's  title  to 
dower,  made  a  provision  for  her  out  of  his  personal  estate  by 
way  of  residue.  This  was  insisted  on  to  be  an  implication  to 
bar  dower.  Lord  Hardwicke  rejected  the  idea ;  because  by  the 
claim  of  dower,  the  wife  did  not  break  in  on  the  will ;  and  this 
was  the  stronger  as  it  was  only  a  residue  ;  which  accidental  bene- 
fit he  might  intend  she  should  have,  as  well  as  dower.f  (c) 

(a)  Jones  v.  Collier,  Amb.  730.  Wake  v.  Wake,  3  Bro.  C.  C.  255.  1  Ves.  jun.  335.  Pear- 
son v.  Pearson,  1  Bro.  C.  C.  292.     Boynton  v.  Boynton,  id.  445.     Miall  v.  Brain,  4  Mad.  119. 

(b)  Foster  v.  Cook,  3  Bro.  C.  C.  347.  French  v.  Davies,  2  Ves.  jun.  572.  Straban  v.  Sut- 
ton, 3  Ves.  249.     Greatorex  v.  Carey,  6  Ves.  615. 

(c)  Ayres  V.  Willis,  1  Ves.  230.     See  Stat.  3  &  4  Will.  4.  c.  105.  s.  9,  10,  12. 

[t  It  is  now  well  settled  that  in  order  to  deprive  a  widow  of  dower,  by  putting  her  to 
election  between  it  and  the  provisions  made  by  her  husband's  will,  it  must  be  shown 
that  the  testator  meant  to  exclude  her  from  it,  as  where  there  is  an  inconsistency  be- 
tween her  claim  to  dower  and  the  testamentary  disposition. 

A  pecuniary  legacy,  personal  annuity,  or  other  benefit  merely  affecting  the  personal 
assets  of  the  testator,  without  any  declaration  that  it  shall  be  in  bar  of  dower,  does  not 
raise  an  implication  of  intention  on  the  part  of  the  testator  to  exclude  the  widow's 
legal  right,  because  there  is  no  inconsistency  between  it  and  the  bequest.  Strahan  v. 
Sutton,  3  Ves.  249  ;  Ayres  v.  Willis,  1  Ves.  sen.  230.  See  Stat.  3  &  4  Will.  4,  c.  105, 
s.  10. 

But  where  the  testator  devises  lands,  or  rents  out  of  lands,  in  which  the  wife  is  dow- 
able, a  presumption  arises  from  that  circumstance,  though  not  of  itself  sufficient,  that 
the  testator  intended  the  testamentary  gift  should  be  in  lieu  of  dower.  Notwithstanding 
this,  however,  the  intention  may  yet  be  doubtful,  and  if  so  the  widow  will  not  be  put  to 


Title  VI.     Bower.     Ch.  IV.  s.  33.  219 

her  election.  The  following  is  a  chronological  list  of  the  principal  cases  of  de- 
vises of  *  real  estate,  subject  to  dower,  wherein  the  intention  to  exclude  the  wife  *  186 
was  held  not  sufficiently  apparent.  Lawrence  v.  Lawrence,  2  Vern.  365  ;  Lemon 
v.  Lemon.  8  Vin.  Ab.  Devise  P.  366,  pi.  45 ;  Hitchen  v.  Hitchen,  Pre.  Chan.  133  ; 
French  v.  Davies,  2  Ves.  jun.  572;  Brown  v.  Parry,  2  Dick.  685  ;  Strahan  v.  Sutton, 
3  Ves.  249 ;  Birmingham  v.  Kirwan,  2  Scho.  &  Lef.  444.  See  Stat.  3  &  4  \V.  4,  c.  105, 
s.  9. 

The  devise  of  the  annual  rents  or  charges  out  of  estates  wherein  the  widow  is  dowa- 
ble  has  been  considered  such  an  equivocal  manifestation  of  the  testator's  intention,  as 
not  to  exclude  the  widow's  right  to  dower.  The  cases  upon  this  subject  are  conflicting. 
They  occurred  in  the  following  order : — Pitts  v.  Snowden,  1  Bro.  C.  C.  292,  note  ;  Ar- 
nold v.  Kempstead,  2  Eden,  236  ;  Amb.  466,  S.  C. ;  Villa  Real  v.  Galway,  Amb.  682  ; 
Jones  v.  Collier,  Amb.  730;  Pearson  v.  Pearson,  1  Bro.  C.  C.  292;  "Wake  v.  Wake, 

1  Ves.  jun.  335  ;  Foster  v.  Cook,  3  Bro.  C.  C.  347  ;  Greatorex  v.  Cary,  6  Ves.  615. 
See  Stat.  3  &  4  W.  4,  c.  105,  s.  9. 

Of  these,  Pitts  v.  Snowden,  Pearson  ».  Pearson,  Foster  v.  Cook,  and  Greatorex  v. 
Cary,  support  the  above  proposition  in  favor  of  the  widow's  claim  to  both  the  dower 
and  testamentary  benefit.  Arnold  v.  Kempstead  is  not  to  be  reconciled  with  Pitts  v. 
Snowden.  Villa  Real  v.  Galway,  and  Jones  v.  Collier,  negatived  the  widow's  claim 
upon  the  peculiar  wording  of  the  wills,  and  Wake  v.  Wake  was  decided  by  Buller,  J., 
on  the  authority  of  Jones  v.  Collier,  which  is  no  authority  for  the  general  proposition 
that  the  annuity  is  of  itself  a  sufficient  bar  to  the  wife's  right. 

The  following  cases  of  devises  of  real  estate  are  instances  wherein  the  intention  to 
exclude  the  widow  has  been  held  sufficiently  apparent : — Gosling  v.  Warburton,  Cro. 
Eliz.  128 ;  Boynton  v.  Boynton,  1  Bro.  C.  C.  445 ;  Birmingham  v.  Kirwan,  2  Scho.  & 
Lef.  444;  Chalmers  v.  Storil,  2  Ves.  &  Bea.  222;  Roberts  v.  Smith,  1  Sim.  &  Stu. 
513  ;  Dickson  v.  Robinson,  MS.  Rolls,  30th  April,  1822,  stated  1  Roper,  Husband  and 
Wife,  by  Mr.  Jacob,  580 ;  Miall  v.  Brain,  4  Mad.  119 ;  Butcher  v.  Kemp,  5  Mad.  61  ; 
Reynolds  v.  Torin,  1  Russ.  129  ;  Roadley  v.  Dixon,  3  Russ.  192  ;  and  see  Coleman  v. 
Jones,  3  Russ.  312. 

Testamentary  provision  expressly  given  in  lieu  of  dower  and  thirds  out  of  the  real 
and  personal  estate  of  the  husband,  will  not  preclude  the  widow  from  claiming  her  dis- 
tributive share  of  her  husband's  effects  as  next  of  kin.  Sympson  v.  Hornsby,  11  Viner, 
185  ;  2  Eq.  Ca.  Ab.  439  ;  2  Vern.  722,  cited  3  Ves.  335  ;  Pickering  v.  Lord  Stamford, 

2  Ves.  jun.  272,  581  ;  3  lb.  332,  493. 

The  subject  of  the  above  note  is  discussed,  and  the  cases  stated  in  detail,  by  the  Ed- 
itor, in  his  edition  of  Roper's  Legacies,  Vol.  II.  p.  530 — 546.] 


220 


TITLE  VII. 

JOINTURE. 
BOOKS   OF  REFERENCE   UNDER    THIS   TITLE. 

Coke  upon  Littleton,  fol.  36,  b. 

Vernon's  Case,  4  Co.  1. 

Flintoff  on  Real  Property.     Vol.  II.  Book  I.  ch.  3. 

Chambers  on  Estates,  p.  106 — 110. 

Eoper  on  Husband  and  Wife.     Vol.  I.  ch.  10,  p.  460—524. 

Kent's  Commentaries.    Vol.  IV.  Lect.  55. 

Blackstone's  Commentaries.    Book  II.  ch.  8. 

CHAP.  I. 

OF   THE    ORIGIN   AND   NATURE   OF   JOINTURES. 

CHAP.  II. 

WHERE   A   JOINTRESS   IS   AIDED   IN    EQUITY. 

CHAP.   III. 

WHAT   WILL   OPERATE   AS   A   BAR    OR   SATISFACTION   OF   A   JOINTURE. 


Sect. 


CHAP.  I. 

OF   THE  ORIGIN  AND  NATURE   OF  JOINTURES. 

Sect.  26.  \_Equitable  Jointures.] 

30.   Who  may  limit  a  Jointure. 
34.   Who  may  take  a  Jointure. 


1.  Origin  of  Jointures. 

5.  Definition  of. 

6.  Circumstances  required. 

7.  Must  commence  on  the  Death 

of  the  Husband. 
9.  And  be  for  the  Life  of  the 
Wife. 
12.  Must  be  limited  to  the  Wife 
herself. 
This   Rule   not  admitted  in 

Equity. 
It  must  be  in  Satisfaction  of 

her  whole  Dower. 
And     be     so     expressed    or 

averred. 
And  made  before  Marriage. 
22.  Jointures  which   require   the 

Acceptance  of  the  Wife. 
25.   Cases  where  the  Widow  takes 
the  Estate  and  Dower. 


13 


17 


18 


21 


35.  An  Infant   is   barred   by   a 
Jointure. 

39.  \_An    Infant    not    bound  by 

uncertain    or    precarious 
Jointure.] 

40.  Nature  of  this  Estate. 

41.  [Jointress    may  not  commit 

Waste. 

44.  Contribution  of  Jointress. 

45.  Jointress  not  entitled  to  Em- 

blements. 

46.  Not  liable  to  Crown  Debts.] 
AT.  A     Rent-charge    is    usually 

given  as  a  Jointure. 
48.  Effect  of  the  Eviction  of  a 
Jointure. 


Section  1.  In  consequence  of  two  maxims  of  the  common  law^, 
First,  that  no  right  can  be  barred  till  it  accrues ;  and,  secondly, 


Title  VII.     Jointure.     Ch.  I.  s.  1 — 4.  221 

that  no  right  or  title  to  an  estate  of  freehold  can  be  barred 
by  a  collateral  *  satisfaction ;  it  was  found  impossible  to  *  188 
bar  a  woman  of  dower  by  any  assurance  of  lands,  either 
before  or  during  the  marriage.  For  a  wife  having  acquired  a 
right  to  be  endowed  of  a  third  part  of  all  her  husband's  lands  at 
the  moment  of  her  marriage,  this  right,  like  all  others,  could  only 
be  extinguished  by  a  release ;  and  no  such  release  of  the  wife, 
either  before  or  during  the  marriage,  would  be  valid.  For,  if 
before  the  marriage,  it  was  no  bar,  because  at  the  time  of  mak- 
ing it,  the  woman  had  no  title  to  dower ;  and,  therefore,  a  re- 
lease from  her  then  would  be  no  bar  to  a  right  which  accrued 
to  her  after.  If  it  was  made  during  the  marriage,  it  was  abso- 
lutely void,  the  wife  not  being  then  sui  juris  ;  and  no  estate  lim- 
ited to  the  wife,  during  the  marriage,  could  bar  her  of  dower, 
because  no  right  or  title  to  a  freehold  estate  can  be  barred  by  a 
collateral  satisfaction,  (a) 

2.  It  followed  that  every  woman  became  entitled,  upon  her 
marriage,  to  one  third  of  all  her  husband's  real  estates,  however 
small  her  fortune  might  be.  Such  an  inequality  induced  many 
persons  to  convey  their  lands  to  uses,  a  widow  not  being  dowable 
of  a  use ;  and  when  this  practice  became  general,  it  was  usual 
on  all  marriages  for  the  parents  of  the  lady  to  procure  the  in- 
tended husband  to  take  an  estate  from  his  feoffees  to  uses,  and  to 
limit  it  to  himself  and  his  intended  wife  for  their  lives,  in  joint 
tenancy  or  jointure,  lest  the  wife  should  be  totally  unprovided 
for  at  the  death  of  her  husband,  (b) 

3.  When  the  Statute  of  Uses  transferred  the  legal  estate  to 
those  who  were  entitled  to  the  use  of  the  lands,  all  women  then 
married  would  have  become  dowable  of  such  lands  as  had  been 
held  to  the  use  of  their  husbands ;  and  would  also  be  entitled  to 
any  particular  lands  that  were  settled  on  them  in  jointure.  But 
as  this  would  have  been  a  manifest  wrong,  the  following  clause 
was  inserted  in  the  Statute  of  Uses  :  (c) 

4.  "  Whereas  divers  persons  have  purchased  or  have  estate 
made  and  conveyed  of  and  in  divers  lands,  tenements,  and  hered- 
itaments, unto  them  and  to  their  wives,  and  to  the  heirs  of  the 
husband ;  or  to  the  husband  and  to  the  wife,  and  to  the  heirs  of 
their  two  bodies  begotten,  or  to  the  heirs  of  one  of  their  bodies 

(a)  Vernon's  case,  4  Eep.  1.    Gilb.  Uses,  147.     Tit.  32.  c.  G. 
{b)  3  Rep.  58.  b.     4  Rep.  1.  b.  (c)  Tit.  11.  c.  3. 

19* 


222  Title  VII.    Jointure.     Ch.  I.  s.  4—7. 

begotten ;  or  to  the  husband  and  to  the  wife,  for  term  of  their 
lives,  or  for  term  of  life  of  the  said  wife ;  or  where  any  such 
estate  or  purchase  of  any  lands,  &c,  hath  been  or  hereafter  shall 

be  made  to  any  husband  and  to  his  wife,  in  manner  and 
189  *     form  above  *  expressed  ;  or  to  any  other  person  or  persons, 

and  to  their  heirs  and  assigns,  to  the  use  and  behoof  of 
the  said  husband  and  wife,  or  to  the  use  of  the  wife,  as  is  before 
rehearsed  for  the  jointure  of  the  wife ;  that  then,  and  in  every 
such  case,  every  woman  married  having  such  jointure  made,  or 
hereafter  to  be  made,  shall  not  claim  nor  have  title  to  have  any 
dower  of  the  residue  of  the  lands,  &c,  that  at  any  time  were 
her  said  husband's,  by  whom  she  hath  any  such  jointure  ;  nor 
shall  demand  nor  claim  her  dower,  of  and  against  them  that  have 
the  lands  and  inheritances  of  her  said  husband.  But  if  she 
have  no  such  jointure,  then  she  shall  be  admitted  and  enabled 
to  pursue,  have,  and  demand  her  dower,  by  writ  of  dower,  after 
the  due  course  and  order  of  the  common  laws  of  the  realm."  1  (a) 

5.  This  statute  has  given  rise  to  the  modern  jointure,  which 
Lord  Coke  defines  to  be  "  a  competent  livelihood  of  freehold  for 
the  wife,  of  lands  or  tenements,  &c,  to  take  effect  presently,  in 
possession  or  profit,  after  the  decease  of  her  husband,  for  the  life 
of  the  wife  at  the  least,  if  she  herself  be  not  the  cause  of  its  de- 
termination or  forfeiture."  (b) 

6.  As  this  statute  contradicts  the  common  law,  it  has  always 
been  construed  strictly  ;  and  Lord  Coke  has  laid  it  down,  that 
no  estate  limited  to  a  woman  shall  be  deemed  a  good  jointure, 
and  a  bar  to  dower,  under  this  act,  unless  it  is  attended  with  the 
following  circumstances. 

7.  And  first  it  must  commence  and  take  effect,  in  possession  or 
profit,  immediately  on  the  death  of  the  husband;  for  otherwise  it 
will  not  be  so  beneficial  as  dower. 

If  therefore,  an  estate  is  conveyed  to  the  husband  for  life,  re- 
mainder to  J.  S.  for  life,  remainder  to  the  wife  for  life,  in  satis- 
faction of  dower,  this  is  not  a  jointure  within  the  statute  ;  because 
by  the  first  limitation  it  is  not  to  take  effect  in  possession  or 

(a)  St.  27  Hen.  8.  c.  10.  s.  6.  (6)  1  Inst.  37.  a.     (Vance  v.  Vance,  8  Shepl.  364.) 


1  The  provisions  of  this  statute  seem  to  have  been  substantially  adopted  in  most  of 
the  United  States  in  which  the  common  law  of  dower  prevails.  See  post,  §  38,  note 
(1.)    4  Kent,  Comm.  56.  note  a. 


Title  VII.    Jointure.     Ch.  I.  s.  7 12.  223 

profit,  presently  after  the  death  of  her  husband.  And  although 
in  this  ease  J.  S.  should  die  in  the  lifetime  of  the  husband,  still 
it  would  be  no  bar  to  dower,  (a) 

8.  So  where  a  person  covenanted  to  stand  seised  to  the  use  of 
himself  in  tail,  remainder  to  the  use  of  his  wife  for  life.  This 
was  held  not  to  be  a  jointure,  because  it  was  to  begin  after  the 
determination  of  an  estate  tail.  And  though  the  estate  deter- 
mined by  the  death  of  the  husband,  without  issue,  so  that  the 
wife's  estate  began  immediately  upon  the  death  of  her 
husband,  *  yet  as  it  was  not  a  good  jointure  at  the  be-  *  190 
ginning,  whatever  happened  afterwards   could  not  make 

it  good.  (6) 

9.  The  second  circumstance  is  that  it  be  for  the  wife's  life,  or 
for  some  greater  estate.  So  that  if  an  estate  be  limited  to  a 
woman,  for  the  life  or  lives  of  one  or  more  persons,  or  for  a 
hundred,  or  a  thousand  years,  if  she  lives  so  long,  it  is  not  a 
jointure.  But  although  the  statute  recites  five  modes  of  limiting 
an  estate  in  jointure,  yet  these  are  only  mentioned  as  examples ; 
and  do  not  exclude  any  other  estate  consistent  with  the  inten- 
tion of  the  act.  (c) 

10.  Thus  in  the  Duchess  of  Somerset's  case,  1  Mary,  it  was 
resolved  by  all  the  judges,  that  an  estate  limited  to  a  man  and 
his  wife,  and  to  the  heirs  male  of  their  two  bodies  begotten,  was 
a  good  jointure  within  the  statute,  though  not  one  of  the  estates 
mentioned  in  it.  And  in  Vernon's  case  it  was  held,  that  an 
estate  limited  to  the  husband  for  life,  remainder  to  the  wife  for 
life,  was  a  good  jointure  ;  though  not  one  of  the  estates  men- 
tioned in  the  statute  ;  because  it  was  equally  beneficial,  (d) 

11.  It  is  said  in  Brooke's  Abridgment  that  an  estate,  limited 
to  a  husband  and  wife  and  their  heirs,  is  not  a  jointure  within 
the  statute,  because  it  is  not  one  of  the  estates  mentioned  in  it. 
But  Dyer  contradicts  this  position,  and  proves  that  it  would  be 
a  good  jointure,  the  words  of  the  act  being,  "  for  term  of  life  or 
otherwise  in  jointure,"  which  word  "  otherwise  "  extended  to  all 
other  estates  conveyed  to  the  wife,  which  were  as  beneficial,  or 
more,  as  the  estates  mentioned,  (e) 

12.  The  third  circumstance  is,  that  the  estate  must  be  limited 

(a)  1  Inst.  36.  b.     4  Rep.  2.  a. 

(b)  Wood  v.  Shirley,  Cro.  Jac.  488.  Caruthers  v.  Caruthers,  4  Bro.  C.  C.  500.  5  Ves.  192. 

(c)  1  Inst.  36.  b.  (d)  Dyer,  97.  b.    4  Rep.  2.  a. 
(e)  Bro.  Abr.  Tit.  Dower,  69.    Dyer,  248.  a.    4  Rep.  3.  b. 


224  Title  VII.     Jointure.    Ch.  I.  s.  12—15. 

to  the  wife  herself,  and  not  to  any  other  person  in  trust  for  her. 
So  that  it  was  formerly  held  that  if  an  estate  was  made  to  others 
in  fee  simple,  or  for  the  life  of  the  wife,  in  trust,  so  as  the  estate 
remained  in  them,  though  for  her  benefit,  and  by  her  assent,  yet 
at  law  it  was  no  bar  to  dower.1  (a) 

13.  Mr.  Hargrave  has  observed  on  this  passage,  that  though 
this  may  be  true  at  law,  yet  it  is  now  settled  that  a  trust  estate 
being  equally  certain  and  beneficial,  as  what  is  required  at  law, 
or  even  an  agreement  to  settle  lands  as  a  jointure,  is  a  good 
equitable  jointure,  and  will  be  a  bar  to  dower. 

14.  Thus,  it  was  determined  by  the  House  of  Lords,  that  a 
covenant  from  the  intended  husband  that  his  heirs,  executors, 

or  administrators,  would  pay  an  annuity  to  his  in- 
191*     *  tended  wife,  for  her  life,  in  case  she  survived  him,  in 

full  for  her  jointure,  and  in  bar  of  her  dower,  without 
expressing  that  it  should  be  charged  upon  lands,  was  a  good 
equitable  jointure,  within  the  statute.  Lord  Hardwicke  answered 
the  objection  of  its  being  in  the  husband's  power  to  have  defeated 
this  agreement,  and  sold  or  given  away  his  whole  estate,  by 
Lord  Letchmere's  and  other  cases,  where  the  agreement  rested, 
as  here,  upon  the  husband's  covenant.  And  further,  by  observing 
that  such  an  alienation  would  have  been  an  eviction  of  the  fund 
out  of  which  the  jointure"  was  to  arise,  and  consequently  let  the 
wife  into  dower.  To  another  objection,  that  the  husband  had 
not  bound  himself  to  do  any  act,  but  only  that  his  heirs,  execu- 
tors, and  administrators,  should  pay,  &c,  he  answered,  that  the 
wife  might,  the  day  after  the  marriage,  have  brought  a  bill,  by 
her  next  friend,  and  compelled  the  husband  himself  to  settle  the 
annuity,  (b) 

15.  By  indenture  made  previous  to  a  marriage,  the  intended 
husband  and  wife  assigned  leasehold  estates  for  years  belonging 
to  each  of  them  to  trustees,  in  trust  to  permit  the  husband  to 
receive  the  rents  for  life,  and  after  his  decease  to  permit  the  wife 
to  receive  the  rents  for  her  life,  in  full  for  her  jointure,  and  in  bar 

(«)  1  Inst.  36.  b. 

(b)  Bucks  v.  Drury,  3  Bro.  P.  C.  492,  infra,  p.  195.    Jordan  v.   Savage,  2  Eq.  Ca.  Ab. 
101,  infra.    9  Mod.  219.    4  Bro.  C.  C.  506.  n.    Ca.  temp.  Talbot,  80. 


1  A  jointure  by  conveyance  to  another  to  the  wife's  use,  is  made  good  by  statute  in 
Missouri.     Eev.  St.  1845,  ch.  54,  §  12. 


Title  VII.     Jointure.     Ch.  I.  s.  15 — 19.  225 

of  dower.     The  Court  of  Chancery  held  this  to  be  a  good  equi- 
table jointure,  (a) 

16.  In  the  case  of  Tinney  v.  Tinney,  a  sum  of  money  secured 
by  bond  to  the  intended  wife,  before  the  marriage,  was  held  to  be 
a  bar  to  dower.  And  in  a  case  published  by  Mr.  Cox,  where  the 
intended  husband  gave  a  bond  to  the  mother  of  the  intended 
wife,  conditioned  that  he  or  his  heirs  would  settle  £500  a  year 
in  land  on  her,  in  satisfaction  of  dower ;  Sir  T.  Clarke,  M.  R., 
held  it  a  good  jointure.  From  which  it  appears  that  the  Courts 
of  Equity  now  consider  any  provision  which  a  woman  accepts 
before  marriage,  in  satisfaction  of  dower,  to  be  a  good  join- 
ture, (b) 

17.  The  fourth  circumstance  is,  that  it  be  made  in  satisfaction 
of  the  wife's  whole  dower,  and  not  of  a  part  of  it  only  ;  for  land 
conveyed  to  a  woman  in  part  of  her  jointure,  or  in  satisfaction 
of  part  of  her  dower,  is  no  bar,  on  account  of  the  uncertainty,  (c) 

18.  The  fifth  circumstance  is,  that  the  estate  limited  to  the 
wife  be  expressed,  or  averred  to  be,  in  satisfaction  of  her  whole 
dower.  [And  it  ought  to  be  so  expressed  in  the  instrument 
settling  it;    or  it  must  appear  by  necessary  implication 

from  the  *  contents  of  the  instrument.!1     But  since  the     *192 
Statute  of  Frauds,  it  appears  somewhat  doubtful  whether 
an  averment  can  be  admitted  that  the  provision  made  for  a  wife, 
previous  to  marriage,  was  intended  as  a  jointure,  and  in  bar  of 
dower,  (d) 

19.  On  a  bill  brought  for  dower,  the  defendant,  the  heir  at 
law,  insisted  that  the  husband  in  his  lifetime  gave  a  bond  in  the 
penalty  of  <£1000,  in  trust  to  secure  to  his  wife  £500,  in  case  she 
survived  ;  that  it  was  intended  at  the  time  in  lieu  of  dower  ;  that 
she  acknowledged  it  to  be  so,  and  offered  to  read  evidence  of 
her  acknowledgment.  Lord  Hardwicke  was  of  opinion  that 
parol  evidence  could  not  be  allowed  in  this  case,  being  within 

(«)  Williams  r.  Chitty,  3  Ves.jun.  545. 

(6)  3  Atk.  8.    Estcourt  v.  Estcourt,  1  Cox,  B.  20.     Corbet  v.  Corbet,  Sim.  &  Stu.  612. 
5  Euss.  254. 

(c)  1  Inst.  36.  b.  {d)  9  Mod<  152, 


[t  See  Caruthers  v.  Caruthers,   4  Bio.  C  C.  500.     See  also  Garthshore  v.  Chalic, 
10  Ves.  1,  20.] 

1  Or,  be  fairly  collected  from  the  circumstances.     Walker  v.  Walker,  1  Vcs.  sen.  53, 
and  Belt's  Suppt.  43,  and  cases  there  cited.     And  see  2  Eden,  60. 


226  Title  VII.    Jointure.     Ch.  I.  s.  19—22. 

the  Statute  of  Frauds ;  and  that  a  general  provision  for  a  wife  was 
not  a  bar  of  dower,  unless  expressed  to  be  so.  That  in  the  case 
of  Vizard  v.  Longdate,.  5  Geo.  I,  Sir  Joseph  Jekyll  held  the 
words  in  a  bond,  to  secure  a  sum  of  money  for  a  woman's  liveli- 
hood and  maintenance,  was  no  bar  of  dower;  but  that  Lord 
Chancellor  King  was  of  opinion  it  was  a  bar  of  dower,  being 
within  the  equity  of  the  Statute  of  Henry  VIII.  of  jointures, 
and,  therefore,  reversed  the  decree,  (a) 

20.  It  is,  however,  observable,  that  there  is  nothing  in  the 
Statute  of  Frauds  excluding  averments ;  and  it  is  generally  under- 
stood, that  whatever  averments  might  have  been  made  before 
that  statute,  may  be  made  since.  Now  in  Vernon's  case,  and 
an  anonymous  case,  Owen  33,  it  was  averred  that  the  estate 
limited  to  the  wife,  was  for  her  jointure,  and  in  bar  of  dower ; 
and  the  averment  was  allowed,  (b) 

21.  The  sixth  circumstance  is,  that  it  be  made  before  marriage. 
For  it  is  enacted  by  the  ninth  section  of  the  statute,  that  if  any 
wife  have  any  manors,  &c,  assured  to  her  after  marriage,  for 
term  of  life  or  otherwise,  in  jointure,  except  the  same  be  made 
by  act  of  parliament,  the  wife  shall  at  her  liberty,  after  the 
death  of  her  husband,  refuse  the  jointure,  and  demand  her 
dower,  (c) 

22.  A  jointure,  attended  with  all  the  circumstances  above 
stated,  is  binding  on  the  widow,  and  a  complete  bar  to  her 
claim  of  dower;  or  rather  prevents  her  title  to  dower  from  ever 
arising.1     But  there  are  other  estates  limited  to  a  wife,  which  are 

good  jointures  within  the  statute,  provided  she  accepts  of 
193  *    them  *  after  the  death  of  her  husband;  though  she  is  at 

liberty  to  reject  them,  and  to  claim  her  dower.  Thus  an 
estate  settled  on  the  wife  after  marriage  may,  by  the  express 
words  of  the  statute,  be  rejected  by  the  widow  after  her  husband's 
death  ;  in  which  case  she  may  claim  her  dower.  But  if  she  once 
accepts  of  such  jointure,  she  is  thereby  bound,  (d) 

(a)  Tinney  v.  Tinney,  3  Atk.  8.  Tit.  32.  c.  20.  Walker  v.  Walker,  1  Ves.  54.  Couch  v. 
Stratton,  4  Ves.  jun.  391. 

(b)  Infra,  s.  25.  (c)  1  Inst.  36.  a.    4  Rep.  3.  a.     (Vance  v.  Vance,  8  Shepl.  364.) 
(d)  (Hastings  v.  Dickinson,  7  Mass.  153.) 

1  It  is  not  essential  to  this  end,  that  the  land  should  be  free  of  incumbrance;  for  if 
the  incumbrance  is  paid  off,  the  jointure  remains  good;  and  if  the  wife  is  evicted  she 
may  claim  her  dower.    Ambler  v.  Norton,  4  Har.  &  McH.  23.     See  post,  §  48. 


Title  VII.    Jointure.     Ch.  I.  s.  23—25.  227 

23.  An  estate  for  life,  limited  to  a  woman  for  her  jointure, 
upon  condition  to  perform  her  husband's  will,  or  which  is  deter- 
minable by  a  second  marriage,  is  a  jointure  within  the  statute  ; 
provided  the  wife  accepts  of  it,  after  the  death  of  her  husband.1 

24.  In  a  writ  of  dower,  the  tenant  pleaded  that  the  husband 
of  the  demandant  was  also  seised  of  lands  in  the  same  county, 
which  he  had  conveyed  to  the  use  of  himself  for  life,  remainder 
to  his  wife  for  life  ;  and  averred  that  the  estate  for  life  so  limited 
to  the  demandant  was  for  her  jointure,  and  in  full  satisfaction  of 
her  dower ;  and  that  after  the  death  of  her  husband  she  had  en- 
tered into  the  lands  so  limited  to  her  for  her  jointure,  and  agreed 
to  it.  The  demandant  replied,  and  confessed  the  conveyance  by 
which  she  took  an  estate  for  life ;  but  said  that  the  estate  was 
upon  condition  that  she  should  perform  her  husband's  will ;  and 
demanded  judgment  if  the  tenant  should  be  admitted  to  aver 
that  this  estate  so  limited  to  the  wife,  upon  the  said  condition, 
was  for  the  jointure  of  the  wife,  and  in  satisfaction  of  her  dower ; 
upon  which  the  tenant  demurred  in  law.  It  was  resolved,  that 
although  the  estate  limited  to  the  wife  was  upon  condition  ;  and 
although  dower,  in  lieu  of  which  the  jointure  was  given,  was  an 
absolute  estate  for  life ;  yet,  inasmuch  as  an  estate  for  life  upon 
condition  was  an  estate  for  life,  it  was  within  the  words  and 
intent  of  the  act,  if  the  wife,  after  the  death  of  the  husband, 
accepted  it;  therefore  she  was  barred  of  her  dower.  It  was 
also  said,  that  an  estate  limited  to  a  woman  during  her  widow- 
hood for  her  jointure,  was  good  within  the  statute,  if  she 
accepted  it.  (a) 

25.  It  appears  from  the  preceding  cases,  that  there  are  two 
sorts  of  jointures  within  the  statute.  One  which  prevents  the 
title  to  dower  from  ever  arising  ;  another  which,  when  accepted, 
but  not  before,  becomes  a  bar  to  dower.  Thus  in  Vernon's  case 
it  was  said,  that  if  the  estate  there  limited  to  the  wife  was  not 
within  the  statute,  then  it  was  no  bar  to  dower ;  but  the  de- 
mandant should  have  both.  And  Lord  Coke  says,  that  where 
the  estate  limited  to  the  wife  does  not  take  effect  immediately 

(a)  Vernon's  case,  4  Rep.  1.     Dyer,  317.  a. 

1  So,  a  base  freehold,  as,  durante  viduitatc,  if  accepted  by  a  wife  of  full  age,  is  a  bar 
of  dower.  Aliter,  if  she  be  an  infant.  McCarty  v.  Teller,  2  Paige,  511.  See  farther, 
on  this  point,  post,  §  38,  note. 


228  Title  VII.     Jointure.     Ch.  I.  s.  25—30. 

194*    *  on  the  death  of  the  husband,  in  which  case  it  is  not 
within  the  statute,  the  widow  shall  take  such  estate,  and 
dower  also,  (a) 

26.  [As  legal  jointures,  made  before  marriage,  if  the  woman 
be  of  age,  will  be  binding  after  the  husband's  death,  so  also  will 
equitable  jointures  so  made.  And  as  at  law  a  jointure  made  after 
marriage,  will  not  be  obligatory  upon  the  widow,  after  her  hus- 
band's death,  but  will  depend  for  its  validity  upon  her  accept- 
ance, so  neither,  under  similar  circumstances,  will  equitable 
jointures  be  binding  upon  her,  but  require  her  confirmation. 

27.  A  legal  jointure,  as  before  noticed,  must  commence  in 
possession  and  profit  immediately  after  the  husband's  decease ; 
but  an  equitable  jointure,  made  before  marriage,  the  wife  being 
a  party  to  the  deed  and  adult,  will  be  equally  binding  upon  her, 
though  she  thereby  accept  a  more  uncertain  or  disadvantageous 
provision ;  for  by  that  agreement  she  will  be  absolutely  barred 
of  her  common-law  right.f  And  notwithstanding  the  provision 
be  not  secured  upon  freehold  estate  ;$  and  although  the  jointure 
rest  only  on  covenant.^ 

28.  But  if  the  provision  be  made  after  marriage,  an  equitable, 
as  well  as  a  legal  jointure,  may  be  accepted  or  rejected  by  the 
widow,  after  her  husband's  death.  But  there  is  this  distinction  ; 
if  the  provision  be  not  a  legal  jointure  within  the  act,  the  widow 
is  not  at  law  put  to  her  election,  but  will  be  entitled  to  both 
provisions  ;  in  equity,  however  the  rule  is  otherwise,  for  in  every 
such  case  the  widow  is  obliged  to  make  her  election  between  the 

equitable  jointure  and  her  legal  right,  (b) 
195  *         *  29.  It  is  not  necessary  that  the  provision  in  bar  of 

dower  should  be  expressly  stated  to  be  in  bar  of  dower  ; 
it  will  be  sufficient  if  it  can  be  collected  from  the  instrument  that 
such  was  the  intention.]  [| 

30.  It  is  not  necessary  that  the  estate  limited  as  a  jointure 
should  proceed  immediately  from  the  husband ;  for  if  it  comes 

(a)  4  Rep.  2.  b.     1  Inst.  36.  b.  (6)  Caruthers  v.  Carutliers,  4  Bro.  C.  C.  513. 


[t  Carutliers  v.  Caruthers,  4  Bro.  C.  C.  513.] 

[J  Rose  v.  Reynolds,  1  Swan.  446;  Vizard  v.  Longden,  cited  2  Eden,  66;  Lacy  v. 
Anderson,  1  Swan.  445  ;  Gladstone  v.  Ripley,  cited  2  Eden,  59,  60-] 

[  §  Sidney  v.  Sidney,  3  P.  Wms.  269.] 

[  ||  Vizard  v.  Longdale,  cited  3  Atk.  8 ;  1  Ves.  sen.  55  ;  2  Eden,  60  ;  Walker  v.  Walker, 
Belt.  Supp.  to  Ves.  sen.  p.  43,  and  cases  there  cited.] 


Title  VII.     Jointure.     Ch.  I.  s.  30—36.  229 

through  the  medium  of  trustees,  or  of  the  demandant  in  a  com- 
mon recovery,  it  will  be  good. 

31.  A  bargained  and  sold  lands  to  I  S  and  I  N  to  make 
them  tenants  in  theprcecipc,  for  the  purpose  of  suffering  a  com- 
mon recovery,  which  was  duly  had,  to  the  use  of  A  and  his  wife, 
for  her  jointure.  Resolved,  that  this  was  an  assurance  by  A 
himself,  for  the  advancement  of  his  wife,  (a) 

32.  If  the  estate  proceeds  from  the  father  of  the  husband  it 
will  be  good. 

33.  The  father  of  the  husband,  in  pursuance  of  articles,  en- 
feoffed trustees  before  the  marriage  to  the  use  of  the  intended 
wife  for  life ;  the  question  was,  whether  this  was  a  good  jointure, 
it  not  being  made  by  the  husband,  nor  of  his  lands.  Held  a  good 
jointure,  (b) 

34.  As  a  jointure  is  an  estate  limited  to  a  woman  in  lieu  and 
satisfaction  of  dower,  it  follows  that  all  those  who  are  capable  of 
being  endovied  may  take  a  jointure. 

35.  It  was  formerly  much  doubted  whether  a  jointure,  settled 
on  an  •  infant,  before  marriage,  was  a  bar  to  dower.  But  it  has 
been  solemnly  determined  in  the  following  case,  by  the  House 
of  Lords,  with  the  concurrence  of  a  majority  of  the  judges,  that 
such  a  jointure  is  good,  and  that  the  infant  cannot  waive  it  after 
her  husband's  death,  and  claim  dower.1 

36.  Sir  Thomas  Drury,  previous  to  his  marriage  with  Martha 
Tyrrell,  who  was  then  an  infant,  by  indenture  made  between  the 
said  Sir  Thomas  Drury  of  the  first  part,  the  said  Martha  Tyrrell 
of  the  second  part,  and  two  trustees  of  the  third  part,  agreed  that 
the  said  Martha  Tyrrell,  in  case  the  marriage  took  place,  and  she 
survived  her  intended  husband,  should  have  and  enjoy  an  annuity 

(a)  Bridge's  case,  Moor,  718. 

(b)  Ashton's  case,  Dyer,  228.   .Melle's  case,  cited  4  Co.  4. 

1  By  the  statute  of  Ohio,  Kev.  St.  1841,  ch.  42,  §  2,  and  of  Missouri,  Rev.  St.  1845, 
ch.  54,  §  13,  if  the  jointure,  or  other  estate  conveyed  in  liejj  of  dower,  was  made  while 
the  woman  was  an  infant,  or  after  marriage,  she  may  waive  it  after  the  husband's 
death,  and  claim  her  dower.  So  is  also  the  law  of  Rhode  Island,  Rev.  St.  1S44, 
p.  191;  and  of  Kentucky,  Rev.  St.  Vol.  I.  p.  575,  576;  and  of  Virginia,  Tate's 
Dig.  p.  176,  177.  In  Maine,  no  jointure  will  prevent  the  claim  of  dower,  unless  it 
was  made  before  the  marriage,  and  with  the  consent  of  the  wife,  expressed  in 
the  deed.  Maine  Rev.  St.  ch.  95,  §10;  Vance  v.  Vance,  8  Shepl.  364.  Such  also 
is  the  law  in  Massachusetts,  New  York,  Indiana,  and  Arkansas.  See  post,  §  38; 
note  (1.) 

vol.  i.  20 


230  Title  VII.    Jointure.     Ch.  I.  s.  36. 

of  £600  during  her  life,  for  and  in  the  name  of  her  jointure ;  and 
that  the  same  should  be  accepted  and  taken  by  her  in  full  satis- 
faction and  bar  of  her  dower;  and  Sir  Thomas  Drury 
196  *  covenanted  *\vith  the  trustees  to  pay  the  said  annuity  of 
£600.  This  deed  was  executed  by  Sir  Thomas  Drury 
and  Miss  Tyrrell,  in  the  presence  of  her  guardian,  who  was  a 
subscribing  witness  to  it;  and  the  marriage  was  soon  after 
solemnized,  with  the  privity  and  consent  of  the  guardian.  Miss 
Tyrrell  was  only  entitled  to  a  portion  of  £2000.  Sir  Thomas 
Drury  died  intestate,  being  seised  in  fee  of  a  considerable  real 
estate,  leaving  two  daughters.  Lady  Drury,  upon  the  death  of 
her  husband,  insisted  that,  as  she  was  an  infant  at  the  time  of 
executing  the  aforesaid  indenture,  and  at  the  lime  of  the  solemni- 
zation of  her  marriage,  she  was  not  bound  to  accept  of  the  pro- 
vision thereby  made  for  her,  but  was  entitled  to  dower.  The  two 
daughters  of  Sir  Thomas  Drury  filed  a  bill  in  Chancery  against 
Lady  Drury,  praying  that  she  might  be  restrained  from  claiming 
dower.  The  cause  was  heard  before  Lord  Chancellor  Henley, 
who  decreed  that  Lady  Drury  was  entitled  to  dower,  (a) 

On  an  appeal  to  the  House  of  Lords,  after  hearing  counsel, 
the  following  question  was  put  to  the  judges : — "  Whether  a 
woman  married  under  the  age  of  twenty-one  years,  having  before 
such  marriage  a  jointure  made  to  her,  in  bar  of  her  dower,  is 
thereby  bound,  and  barred  of  dower  within  the  Statute  27  Hen. 
VIII.  c.  10  ?  "  ! 

(«)  Earl  of  Bucks  v.  Drury,  3  Bro.  Pari.  Ca.  492. 


i  On  this  case,  Mr.  Roper  observes  as  follows : — "  The  argument  on  this  point  ulti- 
mately depended,  in  a  great  measure,  upon  the  question  whether  the  agreement  of  the 
wife  to  a  legal  jointure  made  before  marriage  was  necessary,  to  make  it  binding  upon 
her,  under  the  statute.  It  is  not  required  that  the  wife  should  concur  in  the  settlement 
by  which  the  jointure  is  made,  (see  1  Cruise,  Dig.  228 ;)  and  it  is  not  iu  terms  required 
that  she  should  assent  to  it.  But  from  the  provisions  of  the  statute  as  to  settlements 
made  after  marriage,  it  is  clear  that  it  was  not  intended  to  enable  the  husband  by  his 
own  act  to  impose  on  the  wife  in  lieu  of  her  dower  any  jointure  which  he  might  think 
fit.  The  legislature  seems  to  have  assumed  that  all  antenuptial  jointures  must  be 
settled  by  agreement  of  the  parties,  and  there  seems  some  reason  for  contending  that 
without  such  agreement  the  jointure  would  not  in  strictness  be  within  the  act,  as  by  the 
common  law  the  estate  conveyed  to  the  wife,  by  way  of  jointure,  would  not  be  effectu- 
ally vested  in  her,  without  an  actual  or  presumed  acceptance  on  her  part.  If  it  was 
made  with  her  privity,  her  marrying  with  notice  of  it,  would  of  course  be  an  acceptance 
of  the  settlement  and  conclusive  evidence  of  her  agreeing  to  it.  Estcourt  v.  Estcourt. 
1  Cox,  20.    But  if  it  was  made  without  her  privity,  she  had  the  power  of  disagreeing 


Title  VII.    Jointure.     Ch.  I.  s.  36.  231 

Mr.  Baron  Gould,  Lord  Chief  Baron  Parker,  and  Lord  Chief 
Justice  Pratt,  delivered  their  opinions  in  the  negative.  But  the 
rest  of  the  judges, — namely,  Mr.  Justice  Wilmot,  Mr.  Justice 
Bathurst,  Mr.  Baron  Adams,  and  Mr.  Baron  Smythe,  delivered 
their  opinions  in  the  affirmative.  Lord  Hardwicke  and  Lord 
Mansfield  also  delivered  their  opinions  in  the  affirmative,  where- 
upon the  decree  was  reversed,  [a) 

(a)  Vide  Sir  E.  Wilmot's  Notes,  177. 

to  the  estate  conveyed  to  her,  as  soon  as  she  became  sui  juris,  and  was  apprised  of  the 
fact.  Her  disagreement  would  render  the  conveyance  void,  and  it  would  seem  that  a 
jointure  thus  prevented  from  taking  effect,  would  not  bar  her  right  of  dower  under  the 
statute.  It  was,  however,  determined  that  a  legal  jointure  was  to  be  considered,  not  as 
a  compensation  for  dower  agreed  for  by  the  wife,  but  merely  as  a  provision  conferred 
upon  her.  and  that  it  was  not  founded  on  any  idea  of  contract;  and  hence  it  followed 
that  in  the  case  of  the  wife  being  an  infant,  no  objection  arose  from  her  incapacity  to 
contract.     See  2  Eden,  62,  72. 

"  Mr.  Justice  Wilmot,  in  his  judgment,  entered  fully  into  the  discussion  of  this  ques- 
tion. He  observed  that  the  bar  to  the  right  of  dower  did  not  arise  from  the  agreement 
of  the  woman  to  a  jointure  made  before  marriage,  but  from  the  energy  and  force  of  the 
act  of  parliament  substantiating  the  settlement  against  her  for  this  particular  purpose. 
Wilmot's  Opinions,  p.  194.  He  thought  that  the  meaning  of  the  legislature  with 
respect  to  women  then  married,  was,  that  those  who  had  settlements  made  before  their 
marriages  should  acquiesce  under  those  settlements,  and  abide  by  the  provisions  thereby 
made  for  them,  whether  they  were  great  or  small,  adequate  or  inadequate,  whether  they 
had  been  made  by  the  agreement  of  themselves  or  their  friends,  or  had  been  the  mere 
spontaneous  act  of  the  husband  or  his  ancestors, — p.  202.  The  objection  that  the  hus- 
band might  before  marriage  settle  an  inadequate  jointure  on  the  wife  without  her  assent 
or  knowledge,  for  the  purpose  of  depriving  her  of  dower,  did  not,  as  he  observed,  apply 
to  cases  of  jointures  made  before  the  statute,  as  a  fraud  of  that  description  could  not 
then  have  been  contemplated.  But  in  cases  subsequent  to  the  statute,  he  thought  that 
such  jointures  would  be  void  en  the  ground  of  fraud;  that  the  fraud  might  be  pleaded 
at  law,  and  that  the  fairness  and  competency  would  be  a  question  to  be  decided  by  a 
jury,  taking  into  consideration  all  the  circumstances  of  the  transaction.  'A  pocket 
jointure,'  he  added,  '  made  upon  a  woman,  without  her  privity,  or  upon  an  infant  with 
her  privity,  but  without  the  interposition  of  parents  or  guardians,  would  be  such  an 
evidence  of  fraud  as  would  be  sufficient  to  condemn  it.' " 

"Lord  Hardwicke  considered  that,  though  the  statute  spoke  only  of  jointures  out  of 
freehold  estates,  yet  that  a  fair  and  certain  provision  out  of  any  other  species  of  prop- 
erty would  be  a  good  equitable  jointure,  and  consequently  a  bar  of  dower.  At  the  date 
of  the  statute,  freehold  estate  in  land  was  the  kind  of  property  chiefly  regarded,  and  the 
statute,  therefore,  applied  to  that  only.  But  many  other  species  of  property  had  since 
grown  up,  by  new  improvements,  commerce,  and  from  the  funds.  Equity  had,  there- 
fore, held  that  when  such  provisions  had  been  made  before  marriage  out  of  any  of  these, 
the  wife  should  be  bound  ;  and  he  instanced  particularly  settlements  of  trust  estates, 
copyholds,  and  money  in  the  funds.  And  he  held  that  such  provisions,  when  settled 
on  infants  with  the  consent  of  parents  or  guardians,  were  equally  binding  as  when 
settled  on  adults.  2  Eden,  65,  66."  See  Roper  on  Husband  and  Wife,  Vol.  I.  p.  477— 
480,  notes*    Williams  v.  Chitty,  3  Ves.  545. 


232  Title  VII.    Jointure.     Ch.  I.  s.  37—39. 

37.  The  principle  upon  which  this  case  was  determined  is 
that  a  jointure  being  a  provisione  viri,  and  not  ex  contractu,  the 
consent  of  the  intended  wife  is  not  a  circumstance  required  by 
the  statute,  to  render  a  jointure  valid.  Lord  Mansfield,  in  deliv- 
ering his  opinion  in  the  House  of  Lords,  on  this  case,  said  that  a 
jointure  was  not  a  contract  for  a  provision,  but  a  provision  made 
by  the  husband,  as  defined  by  Lord  Coke ;  so  the  consequences 
drawn  from  the  infant's  incapacity  of  contracting  were  ill- 
founded.  It  is,  therefore,  now  held  that  the  intended  wife  need 
not  be  a  party  to  the  deed  by  which  the  jointure  is  limited.  And 
in  an  opinion  of  the  late  Mr.  Fearne's,  he  says,  "  I  discover 
nothing  in  the  Statute  27  Hen.  VIII.  of  jointures,  that  requires 
the  wife  being  a  party  to  the  deed  which  secures  her  jointure ; 
and  some  of  the  cases  said  to  be  within  that  statute  seem  rather 

against  such  a  conclusion."  (a) 
200*         *38.    It   is,  however,  necessary,  I   conceive,   that  the 

intended  wife,  or,  where  she  is  under  age,  that  her  guar- 
dians f  should  have  notice  of  the  jointure  limited  to  her ;  for 
otherwise  she  may  be  defrauded  by  the  settlement  of  a  jointure 
inadequate  to  her  rank  and  fortune ;  in  which  case  there  can  be 
no  doubt  but  that  she  would  be  relieved  in  equity,  (b)  1 

39.  [If  the  interest  in  the  property  settled  by  way  of  jointure, 

(a)  4  Bro.  C.  C.  50C.  n.    2  Eden,  GO.     (Caruthers  v.  Caruthers,  4  Bro.  C.  C.  500.    Mo.Car- 
tee  v.  Teller,  2  Paige,  511.)    Jordan  v.  Savage,  ante,  2  Ab.  Eq.  101. 
(6)  Estcourt  v.  Estcourt,  1  Cox,  E.  20.     3  Atk.  612. 

[t  It  docs  not  appear  that  the  concurrence  of  guardians  is  indispensable  if  the 
jointure  be  in  other  respects  free  from  legal  objections.  Earl  of  Bucks  v.  Drury,  ubi 
supra.  See,  also,  Drury  v.  Drury,  Co.  Lit.  36,  b.  note  7  ;  Williams  v.  Chitty,  3  Ves. 
545—551.] 

1  The  subject  of  jointures  has  been  regulated  by  statute,  in  several  of  the  United 
States.  Thus,  in  Massachusetts,  a  jointure,  in  the  sense  of  the  common  law,  or  any 
pecuniary  provision,  made  before  marriage,  in  lieu  of  dower,  is  an  effectual  bar  of  the 
claim  of  dower ;  but  to  this  end  it  must,  in  either  case,  have  the  consent  of  the  wife, 
expressed,  if  she  is  of  full  age,  by  her  becoming  party  to  the  deed,  and  if  under  age,  by 
her  joining  with  her  father  or  guardian  in  the  conveyance.  Massachusetts,  Rev.  St. 
ch.  60,  §  8,  9.  And  see  Hastings  v.  Dickinson,  7  Mass.  153.  [Vincent  v.  Spooner, 
2  Cush.  4G7,  473.]  Such  is  also  the  law  of  New  York,  Rev.  St.  Vol.  II.  p.  27,  3d  ed. ; 
McCartee  v.  Teller,  2  Paige,  559  ;  and  of  Arkansas,  Rev.  St.  1837,  ch.  52,  §  9,  10,  11  ; 
and  of  Indiana,  Rev.  St.  1843,  ch.  28,  §  96,  97,  98;  and  of  Maine,  Rev.  St.  ch.  95, 
§  10,  11.  If  such  settlement  is  made  without  her  consent,  or  after  marriage,  it  will  still 
be  binding,  unless  she  expresses  her  dissent  within  a  certain  period  after  her  husband's 
death,  limited  in  the  statutes  ;  which,  in  Massachusetts,  Maine,  and  New  York,  is  six 
months,  and  in  Arkansas,  is  one  year.    In  Connecticut  and  Delaware,  any  cstfcte,  real  or 


Title  VII.    Jointure.     Ch.  I.  s.  39—42.  233 

or  the  amount  of  the  property  itself,  be  uncertain  or  precarious, 
of  course  the  infant  will  wo£  be  bound,  as  under  such  circum- 
stances the  jointure  would  not  be  binding  upon  an  adult.]  f 

40.  We  have  seen  that  an  estate  in  fee,  in  tail,  or  for  life,  may 
be  limited  to  a  woman  for  her  jointure.  In  case  of  a  limitation 
in  fee,  I  conceive  that  a  jointress  would  have  full  power  to  dis- 
pose of  it  as  she  pleased.  But  where  an  estate  tail  is  limited 
to  a  woman  for  her  jointure,  she  is  prohibited  by  the  Statutes 
11  Hen.  VII.  c.  20,$  and  32  Hen.  VIII.  c.  36,  from  alienating 
or  creating  a  discontinuance  of  it  by  feoffment,  fine,  or  re- 
covery, (a) 

41.  Where  lands  are  limited  to  a  woman  for  her  life,  by  way 
of  jointure,  she  is  not  allowed  to  commit  waste ;  and  will  be 
restrained  from  it  by  the  Court  of  Chancery,  in  the  same  manner 
as  other  tenants  for  life.  (6) 

42.  On  a  motion  to  stay  a  jointress,  tenant  in  tail  after  possi- 
bility, &c,  from  committing  waste,  the  Court  held,  that  as  she 
was  a  jointress  within  the  Statute  11  Hen.  VII.  she  ought  to  be 
restrained,  being  part  of  the  inheritance,  which  by  the  statute 

(«)  Tit.  36.  c.  10.  (5)  Bassett  v.  Bassett,  Finch.  189,    Tit.  3.  c.  2. 


personal,  received  by  antenuptial  agreement  in  satisfaction  of  the  claim  of  dower,  is  a 
bar  to  such  claim,  if  the  wife  were  of  age  at  the  time  of  the  settlement.  Conn.  Rev 
St.  1838,  p.  190,  and  Rev.  St.  1821,  tit.  26,  §  5 ;  Andrews  v.  Andrews,  8  Conn.  Rep. 
79  ;  Delaware,  Rev.  St.  1829,  p.  165. 

In  Rhode  Island  and  Kentucky,  the  conveyance  of  any  estate,  real  or  personal,  to  the 
wife,  whether  by  deed  or  will,  in  lieu  of  dower,  to  take  effect  immediately  on  the  death 
of  the  husband,  either  for  her  life,  or  in  fee,  determinable  by  such  acts  only  as  would 
work  a  forfeiture  of  dower  at  common  law,  will  bar  her  right  of  dower.  But  if  the  con- 
veyance is  made  before  marriage,  and  the  wife  is  then  an  infant,  or  if  it  is  made  during 
coverture,  she  may  waive  it,  and  claim  her  dower.  R.  Island,  Rev.  St.  1844,  p. -191  : 
Kentucky,  Rev.  St.  Vol.  I.  p.  575,  576.  A  similar  provision  exists  in  the  statute  of 
Virginia,  1785,  ch.  65,  Tate's  Dig.  p.  176,  177;  except  that  by  the  omission  of  the 
words  "  real  or  personal,"  it  would  seem  restricted  to  real  estate  alone.  In  Pennsylva- 
nia, as  Chancellor  Kent  remarks,  it  is  left  as  a  doubtful  question,  whether  the  settle- 
ment of  personal  estate  would  be  sufficient  to  bar  dower,  and  be  held  equivalent  to  a 
jointure.  But  the  case  of  Drury  v.  Drury,  holding  that  an  infant's  dower  may  be 
barred  by  jointure,  seems,  however,  to  be  assumed  as  the  settled  law.  Shaw  v.  Boyd. 
5  S.  &  R.  309.     See  4  Kent,  Comm.  56,  note  a. 

[t  Caruthers  v.  Caruthers,  4  Bro.  C.  C.  500;  Smith  v.  Smith,  5  Ves.  189  :  Corbet 
v.  Corbet,  1  Sim.  &  Stu.  612  ;  5  Russ.  254.] 

[t  The  above  Statute,  11  Hen.  VII.  c.  20,  is  repealed,  (except  as  to  lands  in  settle- 
ments before  the  2Sth  August,  1833,)  by  the  recent  statute  for  abolishing  fines  and 
recoveries,  3  &  4  Will.  4,  c.  74,  s.  16,  17.] 

20* 


234  Title  VII.    Jointure.     Ch.  I.  s.  42—48. 

she  is  prevented  from  alienating ;  and,  therefore,  granted  an  in- 
junction against  wilful  waste,  (a) 

43.  Where  there  is  a  covenant  that  a  jointure  shall  be  of  a 
certain  yearly  value,  though  the  estate  be  not  limited  without 
impeachment  of  waste,  yet  the  Court  of  Chancery  will  not 
restrain  the  jointress  from  committing  waste,  so  far  as  to  make 

up  the  defect  of  the  jointure,  (b) 
201  *        *44.  Where  the  jointress  and  the  issue  claim  under  the 

same  settlement,  they  shall  contribute  proportionably  in  the 
discharge  of  any  prior  incumbrance  on  the  estate,  (c) 

45.  A  jointress  is  not  entitled  to  the  crops  sown  at  the  time  of 
her  husband's  death  ;  because  a  jointure  is  not  a  continuance  of 
the  estate  of  the  husband,  like  dower,  (d) 

46.  It  appears  from  a  passage  in  Jenkins,!  that  an  estate 
limited  to  a  woman  by  way  of  jointure  is  not  liable  to  debts  due 
to  the  crown. 

47.  The  inconveniences  attending  a  limitation  of  land  by  way 
of  jointure  are  so  numerous,  that  it  has  long  become  a  general 
practice  to  limit  a  rent  charge  to  the  intended  wife,  for  her  life, 
as  a  jointure,  to  commence  on  the  death  of  the  husband,  with 
powers  of  distress  and  entry,  and  a  term  for  years,  for  further 
securing  the  payment  of  it,  which  has  been  found  by  experience 
to  be  much  more  convenient  both  to  the  widow  and  to  the  heir ; 
as  a  more  certain  income  is  thereby  provided  for  the  former,  and 
the  latter  continues  in  the  possession  and  management  of  the 
whole  estate. 

48.  There  is  a  proviso  in  the  Statute  27  Hen.  VIII.  c.  10, 
s.  7,  "  That  if  any  such  woman  be  lawfully  expulsed  or  evicted 
from  her  said  jointure,  or  from  any  part  thereof,  without  any 
fraud  or  covin,  by  lawful  entry,  or  by  discontinuance  of  her  hus- 
band, then  every  such  woman  shall  be  endowed  of  as  much  of 
the  residue  of  her  husband's  tenements  or  hereditaments,  whereof 
she  was  before  dowable,  as  the  same  lands  and  tenements  so 
evicted  and  expulsed  shall  amount  or  extend  unto."  (e) ] 

(«)  Cook  17.  Windford,  1  Ab.  Eq.  221.  (b)  Carew  r.  Carew,  1  Ab.  Eq.  221. 

(c)  Carpenter  v.  Carpenter,  1  Vern.  440.  (d)  Fisher  v.  Forbes,  9  Vin.  Ab.  373. 

(e)  (Ambler  v.  Weston,  4  H.  &  Munf.  23.) 

[  t  Page,  226.] 

1  This  provision,  with  the  general  features  of  this  statute,  on  the  subject  of  jointures, 


Title  VIL    Jointure.     Ch.  I.  s.  49—54.  235 

49.  A  person,  in  consideration  of  a  marriage  before  had,  cove- 
nanted to  stand  seised  to  the  use  of  himself  and  wife,  during 
their  natural  lives,  and  the  life  of  the  longest  liver.  The  lands 
were  evicted  during  the  life  of  the  husband ;  it  was  held  that 
the  eviction  during  the  coverture  was  sufficient  to  entitle  the 
wife  to  a  recompense,  though  she  had  accepted  the  residue  of 
the  jointure  after  the  death  of  her  husband,  (a) 

50.  A  jointure  was  settled  before  marriage ;  the  husband, 
during  the  coverture,  purchased  other  lands,  sold  them  again, 
and  died.  The  jointure  lands  were  evicted;  held,  that  the  wife 
should  have  dower  of«the  lands  which  were  purchased,  and 
aliened  by  her  husband,  at  the  time  when  she  was  barred  of  her 
action  for  dower,  (b) 

*51.  [This  right  of  the  widow  upon  eviction  is  the  same,  *202 
whether  the  jointure  is  before  or  after  marriage,  (c) 

52.  The  effect  of  eviction  is  to  remit  her  to  her  dower  pro 
tanto ;  if  the  value  of  the  dower  be  greater  than  that  of  the 
jointure,  she  can  recover  only  the  amount  of  the  latter ;  and  if 
the  jointure  be  greater,  she  can  only  recover  to  the  amount  of 
her  dower ;  and  she  will  only  be  entitled  to  hold  the  lands 
recovered  during  life,  though  the  jointure  might  have  been 
settled  in  fee  or  in  tail,  (d) 

53.  But  if  the  jointure  were  settled  before  marriage,  and  the 
wife,  being  adult,  relinquishes  her  dower ;  in  case  of  eviction 
she  would,  in  equity,  be  precluded  from  claiming  it  against  a 
purchaser  of  other  lands  of  the  husband  not  charged  with  the 
jointure,  (e) 

54.  The  consequences  of  eviction  of  equitable  jointure  seem 
to  be  the  same  as  if  it  were  legal.  The  widow  also  in  case  of 
eviction  may  avail  herself  of  any  remedies  she  may  have  against 
her  husband's  assets  by  covenant  or  otherwise.]  (/) 

(a)  Gervoye's  case,  Moo.  717.  (b)  Maunsfield's  case,  1  Inst.  33  a.  n.  8. 

(i)  Gervoye's  case,  supra,  1  Vera.  427.    Beard  v.  Nutthall,  1  Vera.  427. 

(d)  1  Sim.  &  Stu.  620.    1  Vera.  427.     3  Bro.  C.  C.  489.     1  Ves.  jun.  451.     4  Co.  3.  b. 

(e)  Simpson  v.  Gutteridge,  1  Mad.  609. 

(/)  2  Eden,  68.     3  Bro.  C.  C.  489.     1  Ves.  jun.  452.    Beard  v.  Nutthall,  ubi  supra. 


is  believed  to  have  been  adopted  in  most,  if  not  all,  of  the  United  States,  where  the 
common-law  doctrine  of  dower  is  recognized.  But  whether  this  particular  provision 
is  in  force  in  New  York,  is  thought  by  Chancellor  Kent  to  be  doubtful.  Sec  4  Kent, 
Comm.  56,  note  a.     [Bliss  v.  Sheldon,  7  Barb.  Sup.  Ct.  152.] 


236 


CHAP.  II. 


WHERE    A    JOINTRESS    IS    AIDED    IN    EQUITY. 


Sect.     1.  A  Jointress  is- deemed  a  Pur- 
chaser. 
4.   Though  the  Settlement  be  un- 
equal. 

7.  Relieved  against  a  voluntary 

Conveyance. 

8.  [_Not  against  a  bona  fide  Pur- 

chaser without  Notice. 

9.  Relieved  ivhere    a  Poicer  to 

Jointure  defectively  exer- 
cised.'] 


Skct.     10.  And    against     a     satisfied 
#  Term. 

11.  Not  bound  by  Neglect  dur- 
ing the  Coverture. 
14.  Not  to  deliver  Title  Deeds. 

1 7.  Sometimes  allowed  Interest 

for  Arrears. 

18.  Effect  of  a    Covenant  that 

the  Lands  are  of  a  cer- 
tain Value. 


Section  1.  A  jointress  is  considered  in  equity  as  a  purchaser 
for  valuable  consideration,  even  though  she  brought  her  husband 
no  fortune ;  marriage  alone  being  deemed  a  valuable  considera- 
tion, from  which  it  follows  that  a  jointress  is  entitled  to  the  aid 
and  assistance  of  a  Court  of  Equity ;  so  that  wherever  there 
appears  to  have  been  an  agreement  to  settle  a  jointure,  a  specific 
performance  of  it  will  be  decreed. 

2.  A  man  agreed,  by  articles,  to  settle  certain  lands  before 
marriage,  on  his  intended  wife,  for  her  jointure.  The  marriage 
took  effect,  but  the  husband  died  before  any  settlement  was 
made  ;  the  wife  brought  her  bill  for  an  execution  of  the  articles. 
It  was  contended,  that  as  the  agreement  was  to  make  a  settle- 
ment before  marriage,  and  as  the  plaintiff  married  without  re- 
quiring such  settlement,  it  amounted  to  a  waiver  of  the  articles, 
and  a  release  in  law ;  an  execution  of  them  was,  however,  de- 
creed, (a) 

3.  Lord  Hardwicke  has  said,  that  in  marriage  contracts,  where 

the  fortune  of  the  wife  is  paid  to  the  father,'  or  to  clear 
204  *     incumbrances,  *  or  to  the  son,  and  the  father  and  son  are 


(a)  Hayner  v.  Hayner,  1  Vent.  343.     Coventry  v.  Coventry,  2  P.  Wras.  222. 


Title  VII.     Jointure.     Ch.  II.  s.  3—6.  237 

parties  to  the  marriage  contract,  the  wife  has  a  lien  upon  both 
the  estate  of  the  father,  and  that  of  the  son.  (a) 

4.  Although  a  settlement  be  very  unequal,  and  much  in  favor 
of  the  wife,  yet  a  Court  of  Equity  will  not  relieve  against  it ;  be- 
cause it  cannot  put  the  wife  into  her  former  situation. 

5.  A,  upon  treaty  of  marriage  with  M,  the  daughter  of  B,  was 
to  settle  .£500  a  year  upon  her,  and  to  have  .£5000  portion. 
But  B,  insisting  that  if  A  should  die  without  issue,  his  daughter 
should  have  the  inheritance  of  the  jointure,  that  was  refused. 
Afterwards  A  renewed  the  treaty  himself,  accepted  of  articles  for 
payment  of  £5000,  and  settled  a  jointure  of  £500  a  year.  He 
likewise  made  another  deed  in  the  nature  of  a  mortgage  of  all 
his  estate,  as  well  the  reversion  of  the  jointure,  as  the  rest,  for 
securing  the  payment  of  £5000  to  her,  in  case  A  died  without 
issue.  A  died  in  a  fortnight  after  the  marriage,  without  issue. 
M,  by  bill,  prayed  a  foreclosure  of  the  mortgage.  The  defend- 
ants, though  they  exhibited  their  bill  for  relief  against  this  as  a 
fraud,  were  decreed  to  pay  the  £5000  without  interest,  (b) 

Upon  an  appeal  to  the  House  of  Lords,  it  was  argued  that  A 
was  a  sickly  and  weak  man ;  that  the  agreement  was  unreason- 
able ;  that  A,  on  his  death-bed,  declared  he  had  made  no  such 
agreement,  and  that  M,  being  present,  did  not  contradict  it.  To 
which  it  was  answered,  that  all  bargains  were  not  to  be  set  aside, 
because  not  such  as  the  wisest  people  would  make ;  but  there 
must  be  fraud  to  make  their  acts  void.  That  the  marriage  was  of 
itself  a  good  consideration  for  a  jointure  ;  and  reasonable  or  un- 
reasonable was  not  always  the  question  in  equity,  if  each  party 
was  acquainted  with  the  whole,  and  meant  what  they  did ;  much 
less  was  it  sufficient  to  say  that  it  was  unreasonable,  as  it  hap- 
pened in  event.  For  if  at  the  time  it  was  a  tolerable  bargain ; 
nay,  if  at  the  time,  the  bargain  was  the  meaning  of  the  parties, 
and  each  knew  what  was  done,  and  there  was  no  deceit  upon 
either,  it  must  stand.     The  decree  was  affirmed. 

6.  A  person  brought  a  bill  to  be  relieved  against  a  jointure, 
made  previous  to,  and  in  consideration  of  marriage,  by  a  tenant 
for  life,  in  pursuance  of  a  power,  he  being  then  upon  his  death- 
bed. Lord  Parker,  assisted  by  Lord  Chief  Justice  Pratt  and  the 
Master  of  the  Rolls,  denied  relief,  (c) 

(a)  1  Atk.  440.  (/,)  Whitfield  v.  Taylor,  Show.  Pari.  Ca.  20. 

(<)  Wicherly  v.  Wicherly,  2  P.  Wins.  Gil'.    Prime  v.  Stebbing,  infra,  c.  3.  s.  10. 


238  Title  VII.     Jointure.   Ch.  II.  s.  7—10. 

205  *  *  7.  A  jointress  will  be  relieved  in  equity,  as  also  at  law, 
against  a  prior  voluntary  conveyance ; 1  because,  as  has 
been  already  stated,  she  is  considered  as  a  purchaser  for  a  valu- 
able consideration.  And  by  a  statute  which  will  be  stated  in  a 
subsequent  title,  all  voluntary  conveyances  are  declared  fraudu- 
lent and  void  as  against  such  purchasers,  (a) 

8.  [But  equity  will  not  decree  the  performance  of  an  agree- 
ment to  settle  a  jointure  upon  the  wife  against  a  bond  fide  pur- 
chaser for  a  valuable  consideration,  without  notice  ;  because  he 
has  equal  equity  with  herself,  and  has  obtained  the  legal  interest 
in  the  estate,  (b)  * 

9.  Where  a  power  to  jointure  is  defectively  executed,  Courts 
of  Equity  will  relieve  the  jointress,  by  supplying  the  defects  in 
the  execution  ;  and  it  is  immaterial  whether  the  intent  to  execute 
the  power  be  by  letter,  memorandum,  will,  articles,  or  covenant. \ 
But  if  the  intent  to  execute  the  power  be  uncertain,  Courts  of 
Equity  will  not  interfere  ;  since  evidence  of  such  intention  is  as 
necessary  in  the  defective,  as  it  is  in  the  regular  execution  of  a 
power.]  (c) 

10.  A  Court  of  Equity  will  also  set  aside  a  satisfied  term  for 

(a)  Tit.  32.  c.  28.  s.  2. 

(6)  2  Vera.  271,  599.    2  P.  Wms.  681.     1  Atk.  571.     2  Bro.  C.  C.  66. 

(c)  Jackson  v.  Jackson,  4  Bra.  C.  C.  462.     Elliot  v.  Hele,  1  Vera.  406.     2  Ch.  Ca.  28,  29, 


1  In  the  United  States,  this  doctrine  is  essentially  modified,  it  being  now  held,  as 
the  better  doctrine,  that  the  title  of  a  prior  voluntary  grantee  is  good,  in  the  absence  of 
fraud,  against  a  subsequent  purchaser  for  valuable  consideration,  with  notice  of  the 
prior  conveyance.  See  4  Kent,  Comm.  463,  464,  and  cases  there  cited;  1  Story,  Eq. 
Jar.  §  424-435;  Cathcart  v.  Robinson,  5  Pet.  280  ;  Ricker  w.  Ham,  14  Mass.  137,  139  ; 
Jackson  v.  Town,  4  Cowen,  603  ;  Sterry  v.  Arden,  1  Johns.  Ch.  261 ;  Hudnal  v. 
Wilder,  4  McCord,  294.  But  it  is  the  settled  American  law  that  a  subsequent  pur- 
chaser, who  acquires  his  title  in  good  faith  and  for  a  valuable  consideration,  without 
notice,  is  protected  under  the  Statutes  of  13  &27  Eliz.,  which  have  been  adopted  as  part 
of  our  common  law,  whether  he  purchases  from  a  fraudulent  grantor  or  a  fraudulent 
grantee  ;  and  that  there  is  no  difference,  in  this  respect,  between  a  conveyance  to  de- 
fraud subsequent  creditors,  and  one  to  defraud  subsequent  purchasers.  But  notice  of 
the  prior  voluntary  conveyance  affects  the  subsequent  purchaser  with  bad  faith,  and 
vitiates  his  title.  And  where  the  purchaser  knows  that  the  purpose  of  the  grantor  is 
to  defraud  creditors  or  others,  the  title  of  the  purchaser  is  void  as  against  them,  even 
though  he  pays  a  full  valuable  consideration.  4  Kent,  Comm.  464;  Edgall  v.  Lowell, 
4  Verm.  R.  405. 

[t  Toilet  v.  Toilet,  2  P.  Wms.  490;  Sergeson  v.  Sealey,  2  Atk.  415;  Wade  v. 
Paget,  1  Bro.  C.  C.  363,  2  Ball  &  B.  44 ;  Coventry  v.  Coventry,  2  P.  Wms.  222 ;  Ver- 
non v.  Vernon,  Amb.  1.] 


Title  VII.    Jointure.    Ch.  II.  s.  10—14.  239 

years  in  favor  of  a  jointress,  though  it  will  not  do  so  in  favor  of 
a  dowress,  the  reason  of  which  will  be  stated  in  a  subsequent 
title,  (a) 

11.  The  neglect  of  a  married  woman  during  coverture  will  not 
affect  her  rights;  and  a  Court  of  Equity  will,  notwithstanding, 
assist  her,  in  case  her  jointure  proves  deficient. 

12.  The  plaintiff's  husband,  after  marriage,  entered  into  a 
voluntary  bond  to  settle  a  jointure;  and  accordingly  settled 
lands,  upon  which  the  bond  was  delivered  up.  The  husband 
died,  and  the  jointress  was  evicted.  It  was  resolved  that  the 
jointure  should  be  made  good  out  of  the  personal  estate,  unless 
the  plaintiff  recovered  dower ;  for  this  agreement,  though  volun- 
tary, ought  to  be  decreed  by  the  Court.  And  the  delivery  up  of 
the  bond  by  a  feme  covert  could  in  no  way  bind  her  interest.  (6) 

13.  A  person  made  a  settlement  on  his  son  for  life,  remainder 
to  his  first  and  other  sons  in  tail,  with  power  to  appoint 

any  of  *the  lands,  not  exceeding  £100  a  year,  to  any  *206 
wife  he  should  marry,  for  a  jointure.  The  father  died, 
the  son  married,  and  after  marriage,  appointed  certain  lands  to 
trustees,  in  trust  for  his  wife,  for  a  jointure ;  and  covenanted, 
that  if  they  were  not  of  the  value  of  £100  a  year,  he  would, 
upon  request  made  to  him  any  time  during  his  life,  make  them 
up  out  of  the  other  lands.  The  husband  lived  several  years ; 
no  complaint  was  made  that  the  lands  were  not  of  that  value, 
nor  any  request  to  make  it  up.  On  a  bill  brought  by  the  widow 
to  have  the  jointure  made  up  £100,  Lord  Keeper  Wright  said, 
that  a  provision  for  a  wife,  or  children,  was  not  to  be  considered 
as  a  voluntary  covenant ;  and,  therefore,  decreed  the  deficiency 
to  be  made  up,  notwithstanding  the  wife's  neglect  in  not  request- 
ing it  during  the  coverture ;  for  the  laches  of  a  feme  covert  could 
not  be  imputed  to  her.  (c) 

14.  If  a  bill  is  brought  by  an  heir  at  law,  or  any  other  person, 
against  a  jointress,  whereby  the  party  would  avoid  the  jointure, 
under  pretence  that  his  ancestor  had  not  a  sufficient  title  to  make 
it ;  and  seeks  a  discovery  of  deeds  and  writings,  whereby  he 
would  avoid  the  title  of  the  jointress  ;  he  will  not  be  allowed  to 
have  such  discovery,  though  the  jointure  be  made  after  marriage, 

(n)  Tit.  12.  c.  3.  s.  39,  &c.  (I)  Beard  v.  Nutthall,  1  Vera.  427. 

(c)  Fothergill  v.  Fothergill,  1  Ab.  Eq.  222. 


240  Title  VII.     Jointure.     Ch.  II.  s.  14—19. 

unless  he  by  his  bill  submits  to  confirm  the  title  of  the  jointress ; 
and  then  he  shall,  (a) 

15.  On  a  motion  that  all  deeds,  leases,  and  writings,  relating 
to  the  inheritance,  should  be  delivered  up,  on  confirming  a  joint- 
ure ;  it  was  opposed  as  to  the  leases,  because  without  them  the 
jointress  could  not  recover  the  rents  ;  and  though  the  leases 
should  be  expired,  there  might  be  arrears  of  rent,  and  covenants. 
The  Court  ordered  all  deeds  and  writings,  and  expired  leases, 
to  be  delivered  up ;  unless  particular  reasons  were  shown  to  the 
contrary,  (b) 

16.  The  Court  of  Chancery  will  not  oblige  a  widow  to  produce 
the  deed  under  which  she  claims  her  jointure,  on  the  bare  offer 
of  confirming  it ;  but  it  must  be  absolutely  confirmed,  (c) 

17.  Interest  is  not  in  general  allowed  for  arrears  of  a  jointure ; 
but  the  Court  will  expect  a  special  case  to  be  made  for  that  pur- 
pose.! (d) 

207  *  *  18.  If  a  husband  covenants  that  the  lands  limited  in 
jointure  are  of  a  certain  yearly  value,  and  they  afterwards 
prove  deficient,  the  covenant  will  be  decreed  to  be  performed  in 
specie.  And  although  such  a  covenant  be  inserted  in  articles  only, 
and  not  in  the  settlement  made  in  pursuance  of  them,  yet  it  will 
be  considered  as  subsisting  in  equity. 

19.  A  jointress  brought  her  bill  to  have  an  account  of  the  real 
and  personal  estate  of  her  late  husband  ;  and  to  have  satisfaction 
for  a  defect  of  value  of  her  jointure  lands  ;  which  he  had  cove- 
nanted to  be,  and  to  continue,  of  a  certain  yearly  value.  The 
defendant  insisted  that  this  was  a  covenant  which  sounded  only 
in  damages,  and  was,  therefore,  properly  determinable  at  law. 
Though  it  was  admitted  that  a  Court  of  Equity  cannot  regularly 
assess  damages,  yet  it  was  determined  that  in  this  case  a  Master 
might  properly  inquire  into  the  amount  of  the  defect,  and  report 
it  to  the  Court,  which  might  send  it  to  be  tried  at  law,  upon  a 
quantum  damnificat.  (e) 

(a)  Towers  v.  Davys,  1  Vern.  479.     Supra,  p.  107,  and  note. 

(b)  Lomax  v.  -,  Sel.  Ca.  in  Cha.  4.  (c)  Leech  v.  Trollop,  2  Ves.  662. 

(d)  Anon.  2  Ves.  261.     See  2  Ves.  jun.  167.     Tew  v.  Winterton,  1  Ves.  jun.  451. 

(e)  Hedges  i\  Everard,  1  Ab.  Eq.  18. 


[t  See  Lord  Kedesdale's  observations  upon  this  subject,  in  Anderson  v.  Dwyer, 
1  Scho.  &  Lef.  303.] 


Title  VII.    Jointure.     Ch.  II.  s.  20—21.  241 

20.  Where  lands,  settled  for  a  jointure,  are  covenanted  to  be 
of  a  certain  clear  yearly  value,  and  after  the  death  of  the  husband 
they  prove  deficient,  the  jointress  is  entitled  to  have  the  deficiency 
made  good,  out  of  the.  other  lands  ;  and  to  come  in  as  a  specialty 
creditor,  upon  the  husband's  estate,  for  the  arrears  of  the  defi- 
ciency, with  interest,  (a) 

21.  Where,  in  marriage  articles,  the  lands  agreed  to  be  limited 
in  jointure  are  expressed,  but  not  covenanted,  to  be  of  a  certain 
yearly  value,  and  afterwards  prove  deficient ;  this  amounts  to  an 
agreement  that  they  were  of  that  value  ;  and  is  a  sufficient  foun- 
dation for  making  up  the  deficiency.  (Z>) 

(a)  Parker  r.  Harvey,  2  Ab.  Eq.  241.     4  Bro.  Pari.  Ca.  604.     Eustace  v.  Keightley,  4  Pro. 
Pari.  Ca.  588. 
(6)  Glegg  v.  Glegg,  2  Ab.  Eq.  27.     4  Bro.  Pari.  Ca.  614.     Probert  v.  Morgan,  1  Atk.  440. 


VOL.  I.  21 


242 


CHAP.  III. 


WHAT    WILL    OPERATE    AS    A    BAR    OR    SATISFACTION    OF    A    JOINTURE. 


Sect.     1.  Fine  or  Recovery  by  the  Wife. 

3.  Not  barred  by  Attainder  of  the 

Husband.  • 

4.  Nor  by  Elopement  of  the  Wife. 
7.  A  Deviseisno  Bar  to  Jointure. 


Sect.  12.  Unless  so  expressed,  when  the 
Widow  has  an  Election. 
14.  A  Devise  sometimes  held  a 
Satisfaction. 


Section  1.  "Where  a  jointure  is  settled  on  a  woman  before 
marriage,  pursuant  to  the  statute,  it  so  far  resembles  dower,  that 
it  cannot  be  defeated  by  the  alienation  of  the  husband  alone,  or 
be  charged  with  any  incumbrances  created  by  him,  after  the 
marriage.  But  if  a  wife  joined  with  her  husband  in  levying  a 
fine,  or  suffering  a  common  recovery,  of  the  lands  settled  on 
her  as  her  jointure,  or  out  of  which  the  jointure  was  to  issue, 
she  would  be  thereby  barred  of  such  jointure,  upon  the  same 
principle  as  that  by  which  a  fine  or  recovery  would  bar  her  of 
dower. f  (a) 

2.  If  the  jointure,  whereof  the  wife  levied  a  fine  or  suffered  a 
recovery,  were  made  before  marriage,  the  wife  would  then  be 
barred,  not  only  of  the  jointure,  but  also  of  her  claim  to  dower. 
But  if  the  jointure  were  made  after  marriage,  a  fine  or  recovery 
.by  the  husband  and  wife,  of  such  jointure,  would  not  bar  the 
wife  of  her  right  to  dower.  For  in  the  first  case,  the  jointure 
having  been  made  before  marriage  was  not  waivable ;  whereas, 
in  the  second  case,  it  was  waivable,  and  the  time  of  her  election 
came  not  till  after  the  death  of  her  husband ;  so  that  she  might 

claim  her  dower  in  the  rest  of  his  lands,  (b) 
209  *        *  3.  A  jointure  is  in  several  cases  more  favored  in  law 
than  dower ;  for  although  the  husband  commit  treason  or 
felony,  yet  his  widow  will  be  entitled  to  her  jointure.     But  if 


(«)  Tit.  6.  c.  4.  s.  13. 


(b)  1  Inst.  37.  a.     Dyer,  358.  b.     Ante,  c.  1. 


[t  Fines  and  recoveries  are  abolished  by  Stat.  3  &  4  W.  4,  c.  74.    This  act  does  not 
extend  to  Ireland,  except  where  expressly  mentioned.] 


Title  VII.     Jointure.     Ch.  III.  s.  3—6.  243 

the  widow  be  attainted  of  either  of  these  crimes,  she  will  lose 
her  jointure,  (a) 

4.  A  jointure  is  not  barred  or  forfeited  by  the  elopement  of 
the  wife  from  her  husband,  and  her  living  in  adultery,  nor  will 
these  acts  even  preclude  her  from  obtaining  relief  in  equity.1  (b) 

5.  A  woman  brought  a  bill  against  her  husband,  for  a  specific 
performance  of  her  marriage  articles,  whereby  he  had  agreed  that 
a  jointure  should  be  settled  on  her.  The  defendant  answered 
that  the  plaintiff  had  withdrawn  herself  from  him,  lived  separ- 
ately, and  very  much  misbehaved  herself.  It  was  proved  that 
the  plaintiff  did  elope  from  her  husband  and  went  with  another 
man  to  a  cottage  about  three  miles  from  her  husband's  house  ; 
since  which  there  had  been  no  pretence  of  a  reconciliation.  So 
that  this  was  a  bar  of  dower  at  common  law ;  therefore  equity 
ought  not  to  assist  such  a  woman.  Lord  Talbot  observed,  that 
the  fact  of  adultery  was  not  put  in  issue,  the  accusation  being 
only  general  and  uncertain.  But  the  articles  being  that  the 
husband  should  settle  such  and  such  lands  in  certainty  upon  his 
wife,  for  her  jointure,  this  was  pretty  much  in  the  nature  of  an 
actual  and  vested  jointure  ;  as  what  was  covenanted  for  a  good 
consideration  to  be  done,  was  in  most  respects  considered  in 
equity  as  actually  done;  consequently  this  was  a  jointure,  and 
not  forfeitable,  either  for  adultery  or  elopement.  The  reason 
why  a  wife  forfeited  her  dower  by  an  elopement  with  an  adul- 
terer, and  yet  the  husband  did  not,  by  leaving  his  wife,  and 
living  with  another  woman,  forfeit  his  estate  by  the  curtesy, 
was,  because  the  Statute  of  Westminster  2,  does,  by  express 
words,  create  a  forfeiture  in  the  one  case,  and  not  in  the  other. 
Decreed  that  the  husband  should  perform  the  articles,  (c) 

6.  In  a  modern  case,  where  a  bill  was  filed  by  trustees,  pray- 
ing a  performance  of  marriage  articles,  the  husband  resisted,  so 
far  as  the  articles  made  a  provision  for  the  wife ;  alleging  and 
proving  that  she  lived  separate  from  him,  in  adultery.  Lord 
Thurlow  was  of  the  opinion  that  this  was  not  a  reason  for  non- 

(a)  1  Inst.  37.  a.     And  see  Stat.  54.  G.  3.  c.  145.  (b)  (4  Kent,  Comm.  54,  55.) 

(c)  Sidney  v.  Sidney,  3  P.  Wms.  269.     (4  Kent,  Comm.  56.)     Tit.  6.  c.  4.  s.  4— 9. 


1  In  some  of  the  United  States,  it  is  expressly  enacted  that  a  jointure,  devise,  or 
other  provision  in  lieu  of  dower,  shall  be  forfeited  by  any  cause  which  would  be  a  for- 
feiture of  the  dower  at  common  law.  See  N.  York,  Rev.  St.  Vol.  II.  p.  27,  3d  ed. 
Arkansas,  Rev.  St.  ch.  52,  $  15.     Indiana,  Rev.  St.  1843,  ch.  28,  §  103. 


244  Title  VII.     Jointure.     Chap.     III.  s.  6—9. 

performance  of  the  articles,  as  to  the  wife.  Decreed  accord- 
ingly, (a) 
210  *  *  7.  The  principles  laid  down  in  the  preceding  title 
as  to  the  effect  of  devises  in  barring  dower,  have  been 
adopted  with  respect  to  jointures.  So  that  a  general  devise  of 
other  lands,  or  of  personal  property,  by  a  husband  to  his  wife, 
would  not  [before  the  late  statute  for  amending  the  law  of 
dower]  operate  as  a  bar  to  a  jointure,  settled  on  the  wife,  either 
before  or  after  marriage.f  (b) 

8.  A  man,  on  his  marriage,  gave  a  bond  to  a  trustee  in  the 
penalty  of  £4000,  conditioned  that  if  he,  at  any  time  within 
four  months,  should  settle  and  assure  on  his  wife  freehold  lands 

of  the  yearly  value  of  £100,  then  the  bond  to  be  void. 
214  *     The  *  husband  soon  after   the   marriage   made   his  will, 

devising  thereby  freehold  and  copyhold  lands,  lying  inter- 
mixed in  Norfolk,  to  his  loving  wife  and  their  heirs ;  and  died 
within  four  months  after  her  marriage,  (c) 

Master  of  the  Rolls, — "  As  money  and  lands  are  things  of  a 
different  nature,  the  one  shall  not  be  taken  in  satisfaction  of  the 
other.  Whatever  is  given  by  a  will  is  prima  facie  to  be  intended 
a  bounty  and  benevolence  ;  and  it  is  remarkable  that  in  the 
present  case  the  devise  is  to  his  loving  wife,  which  is  a  term  of 
affection.  The  devise  of  such  of  the  land  as  is  copyhold  can- 
not possibly  be  towards  satisfaction  of  the  £100  per  annum, 
which  was  to  be  freehold ;  nay,  supposing  the  whole  £88  per 
annum  were  freehold,  it  would  not  go  towards  satisfaction  of 
the  £100  per  annum  ;  not  being  so  expressed.  And  supposing 
there  were  assets  to  pay  all  the  bond  debts,  and  likewise  the 
charges  laid  by  the  will  on  the  land,  in  such  case  the  £88  per 
annum  should  be  enjoyed  as  a  bounty  and  benevolence." 

9.  A  father  and  son,  upon  the  marriage  of  the  son,  covenanted 
that  the  lands  settled  on  the  son's  wife,  for  her  jointure,  were 
worth  £300  per  annum.  The  son  gave  by  his  will  a  legacy  of 
£1000  to  his  wife.     On  a  bill  brought  by  the  wife  to  have  a  de- 

(a)  Blount  v.  Winter,  cited  3  P.  Wms.  277.  See  also  Seagrave*?.  Seagrave,  13  Ves.  439*443. 

(b)  Tit.  G.  c.  4:  s.  19,  33,  and  note  (b.)     Grove  v.  Hook,  4  Bro.  Pari.  Ca.  593. 

(c)  Eastwood  v.  Vincke,  2  P.  Wms.  CI 3. 


[t  But  as  regards  dower  in  respect  of  devises  of  real  estate  to  the  widow,  the  law  is 
now  altered.     See  Stat.  3  &  4  Will.  4,  c.  105,  s.  9,  10,  supra,  p.  161,  note.] 


Title  VII.     Jointure.     Ch.  III.  s.  9—11.  245 

ficiency  in  her  jointure  supplied  out  of  the  assets  of  her  husband 
and  of  his  father,  and  also  for  the  legacy  of  £1000,  Lord  Hard- 
wicke  held  that  the  legacy  of  .£1000  given  by  the  will  ought  not 
to  be  considered  in  this  case  as  a  satisfaction  for  the  deficiency 
of  her  jointure,  because  that  did  not  arise  till  after  his  death, 
and,  therefore,  could  not  at  the  time  be  in  his  consideration ;  and 
as  the  jointure  lands  were  covenanted  by  the  marriage  settlement 
to  be  worth  so  much,  clear  of  all  reprises,  the  testator  plainly 
intended  the  £1000  as  a  bounty  for  her.  (a) 

10.  John  Sheppard  having  by  his  marriage  articles  covenanted 
that  the  lands  settled  on  his  wife  were  of  the  annual  value  of 
£1600  above  all  incumbrances,  made  his  will  in  these  words  : — 
"  I  do  hereby  ratify  and  confirm  my  marriage  articles  ;  and  I  do 
also  give  to  my  wife  the  lands  in  A  B  for  life."  The  wife  and 
her  second  husband  brought  a  bill  to  have  a  deficiency  in  her 
jointure  lands  supplied,  winch  was  not  disputed ;  but  it  was  in- 
sisted that  the  lands  devised  should  be  taken  instead  thereof. 

(Lord  Hardwicke,  upon  consideration  of  the  whole  will,  was  of 
opinion  that  the  testator  did  not  intend  to  give  the  lands  in  A  B 
as  a  satisfaction  of  what  the  wife  was  in  strictness  of  law  entitled 
to,  under  the  articles ;  but  clearly  as  an  accumulated  bounty. 
He,  therefore,  directed  an  inquiry  into  the  deficiency  of  the  joint- 
ure, and  decreed  it  to  be  made  good  out  of  the  estate.)  (b) 

11.  Sir  B.  Broughton,  by  articles  previous  to  and  in  consider- 
ation of  his  marriage  with  Miss  Hill,  covenanted  that  in  consider- 
ation of  the  said  marriage,  and  of  £10,000,  her  marriage  portion, 
he  would  convey  certain  lands  in  the  county  of  Chester  to 
trustees,  to  the  use  of  himself  for  life,  and  to  secure  an  annuity 
of  £1000  to  Miss  Hill  for  her  jointure,  and  in  bar  of  dower; 
remainder  to  his  first  and  other  sons  in  tail ;  remainder  to  his 
own  right  heirs.  The  marriage  took  effect,  and  Sir  B.  Brough- 
ton received  the  £10,000  portion;  but  no  settlement  was  ever 
executed  pursuant  to  the  articles.  Sir  B.  Broughton  having 
sold  a  large  estate  in  Lincolnshire  for  £27,000,  and  having  con- 
tracted for  the  purchase  of  several  considerable  estates  in  Hamp- 
shire, by  his  will  gave  to  Lady  Broughton  a  leasehold  house  in 
London,  in  which  he  resided,  with  all  the  furniture  thereof;  and 
also  devised  to  her  and  her  heirs  all  the  estates  in  Hampshire  for 

(a)  Probert  v.  Morgan  and  Clifford,  1  Atk.  440. 

(b)  Prime  v.  Stebbing,  2  Ves.  409. 

21* 


246  Title  VII.    Jointure.     Ch.  III.  s.  11—13. 

the  purchase  of  which  he  had  contracted,  or  in  lieu  thereof  the 
whole  money  arising  from  the  sale  of  his  estates  in  Lincolnshire. 
He  then  devised  his  estates  in  Cheshire,  which  were  liable  to 
the  jointure,  to  trustees,  to  the  intent  that  C.  Shrimpton  should 
receive  thereout  an  annuity  of  X20,  and  subject  thereto, 
217*  to  the  *use  of  Sir  Thomas  Broughton,  his  heir  at  law, 
for  life,  remainder  to  his  first  and  other  sons  in  tail  male, 
remainder  over. 

Upon  the  death  of  Sir  B.  Broughton,  Lady  Broughton  entered 
on  the  estate  thus  devised  to  her ;  and  the  heir  at  law  having 
refused  to  pay  her  jointure,  she  filed  a  bill,  praying  a  specific 
execution  of  her  marriage  articles,  so  far  as  related  to  her  joint- 
ure ;  to  which  the  heir  at  law  put  in  his  answer  insisting  that 
what  was  given  by  the  will  to  Lady  Broughton,  was  in  satisfac- 
tion for  what  she  was  entitled  to  under  the  articles ;  and  that 
she  could  not  have  both  provisions. 

The  cause  w~as  heard  before  Lord  Bathurst,  who  decreed  that 
Lady  Broughton  was  entitled  to  have  her  jointure  agreeable  to 
the  articles.  And  on  appeal,  this  decree  was  affirmed,  (a)  f 
220  *  *  12.  But  where  a  freehold  estate  was  devised  to  a 
woman  expressly  for  her  jointure,  and  in  bar  and  satis- 
faction of  a  jointure  settled  on  her,  either  before  or  after  mar- 
riage ;  in  such  case  the  widow  could  not  have  both,  for  that 
would  contradict  the  will ;  but  she  must  make  her  election. 

13.  Robert  Pitt,  by  articles  in  consideration  of  marriage, 
agreed  to  lay  out  £  10,000  in  the  purchase  of  land,  to  be  settled 
to  the  use  of  the  plaintiff  Harriet,  his  intended  wife,  for  her  life, 
for  her  jointure.  The  marriage  took  place  ;  afterwards,  the  father 
of  R.  Pitt  gave  him  an  estate  for  life,  with  power  to  grant  a  rent 
charge  of  <£400  a  year  to  any  woman  he  should  marry,  for  her 
jointure.  In  pursuance  of  this  power,  Robert  Pitt  granted  a  rent 
charge  of  <£400  a  year  to  his  wife,  to  commence  after  his  decease, 
in  satisfaction  of  part  of  her  jointure.  Three  days  after,  he  con- 
veyed a  leasehold  estate  of  £200  a  year  in  trust  for  his  wife; 

(a)  Broughton  V.  Errington,  7  Bro.  Pari.  Ca.  4G1. 


[  t  Upon  the  subject  of  performance  and  satisfaction  of  the  husband's  covenant  to 
settle  lands  in  jointure,  see  a  more  detailed  discussion  in  Eoper's  Husband  and  Wife. 
Vol.  I.  p.  509,  Jacobs's  ed.] 


Title  VII.    Jointure.    Ch.  III.  5.  13—17.  247 

and  by  his  will  he  confirmed  the  grant  of  the  rent  charge,  and 
the  conveyance  of  the  leasehold  settled  on  his  wife,  by  way  of 
addition  or  augmentation,  and  in  full  compensation  of  her  joint- 
ure. It  was  held,  that  this  was  a  satisfaction  of  the  jointure 
provided  by  the  articles,  according  to  the  intention  of  Robert 
Pitt  ;  that  the  plaintiff  should  make  her  election,  whether  to 
have  the  rent  charge  of  £400  and  the  leasehold,  or  the  £10,000 
laid  out  in  lands,  (a) 

14.  Although  a  devise  be  not  expressly  mentioned  to  be  in  bar 
of  a  jointure,  yet  if  it  should  appear,  from  any  circumstances  in 
the  ivill,  to  have  been  the  intention  of  the  testator  that  such 
devise  was  meant  as  a  satisfaction  for  the  jointure ;  a  Court  of 
Equity  would,  I  presume,  reason  by  analogy  from  the  cases  in 
which  a  devise  has  been  held  a  satisfaction  for  dower,  and  com- 
pel the  jointress  to  make  her  election,  (b) 

15.  There  is  one  case  where  there  was  a  deficiency  in  a  joint- 
ure, and  the  husband  having  devised  lands  to  the  jointress  for 
her  life,  and  also  a  sum  of  money,  such  devise  and  bequest  were 
held  to  be  a  satisfaction  for  the  deficiency  of  the  jointure.' 

16.  Lord  Montague,  on  the  marriage  of  his  son  Francis, 
settled  estates  to  the  use  of  the  lady  for  her  life,  for  her  jointure ; 
the  lands  so  settled  were  covenanted  to  be  of  the  yearly  value 
of  £1000.  After  the  death  of  Lord  Montague,  the  honor  and 
estate  descended  to  Francis,  who  devised  other  lands  of  about 
£500  a  year  to  his  wife  for  her  life,  together  with  a 
legacy  of  *£500,  and  part  of  his  household  goods  ;  after-  *  221 
wards  Francis,  Lord  M.,  being  minded  to  make  some 
further  provision  for  his  lady,  revoked  the  uses  of  some  part  of 
his  estates,  and  limited  the  same  to  trustees,  in  trust,  to  raise 
£10,000  for  her.  By  a  codicil  he  devised  to  her  an  annuity  of 
£500  a  year  during  her  life.  Upon  his  death  his  widow  brought 
her  bill  in  Chancery,  to  have  a  deficiency  in  her  jointure  made 
up.  Lord  Cowper  declared  that  the  legacies,  which  were  admitted 
to  be  of  greater  value  than  the  deficiency  in  the  jointure,  ought 
to  be  taken  in  satisfaction  of  the  breach  of  covenant,  (c) 

17.  It  is  observable  that  this  case  was  prior  to  that  of  Prime 
v.  Stebbing,  and  is  not  reconcilable  to  it.     The  decree  appears 

(a)  Grandison  v.  Pitt,  2  Ab.  Eq.  392.  (b)  Tit.  C.  c.  4.  s.  29. 

(c)  Montague  V.  Maxwell,  4  Bro.  Pari.  Ca.  598.    2  Ab.  Eq.  421. 


248  Title  VII.    Jointure.     Ch.  III.  s.  17. 

to  have  been  made  upon  the  ground  that  Francis,  Lord  M.,  was 
a  very  weak  man,  and  under  the  influence  of  his  wife.  For  upon 
an  appeal  to  the  House  of  Lords,  it  was  ordered  that  the  Court 
of  Chancery  should  direct  an  issue  to  try  whether  Lord  M.  was 
sane  at  the  time  of  the  execution  of  the  codicil ;  and  a  verdict 
was  found  that  he  was  not  of  sound  mind  then.f  (a) 

(a)  Ante,  s.  10. 


[  t  Upon  the  subject  of  satisfaction  of  debts  by  testamentary  benefits,  see  the  Editor's 
edition  of  Roper's  Legacies,  1828,  Vol.  II.  ch.  17,  s.  1,  2.] 


249 


TITLE  VIII. 

ESTATE   FOR   YEARS. 
BOOKS   OF   REFERENCE   UNDER   THIS   TITLE. 

Coke  upon  Littleton,  43.  b. — 54.  b. 

Woodf all's  Law  of  Landlord  and  Tenant.     (Wollaston's  edition.) 

Comyn's  Law  of  Landlord  and  Tenant.     (Chilton's  edition.) 

Smythe's  Law  of  Landlord  and  Tenant,  in  Ireland. 

Kent's  Commentaries.    Vol.  IV.  Lect.  56. 

Blackstone's  Commentaries.    Book  II.  ch.  9. 

Flintoff  on  Real  Property.     Vol.  II.  Book  I.  ch.  3. 

Dane's  Abridgment,  ch.  133. 

Bacon's  Abridgment.    Tit.  Leases  and  Terms  for  Years.     This  article  is  a 

Treatise,  written  by  Ch.  Baron  Gilbert. 
Gibbons  on  Fixtures,  in  13  Law  Library. 
[Taylor's  American  Law  of  Landlord  and  Tenant,  2d  edition.] 

CHAP.  I. 

ORIGIN  AND   NATURE   OF   ESTATES   FOR   YEARS. 

CHAP.  II. 

INCIDENTS   TO   ESTATES   FOR  YEARS. 


CHAP.  I. 

ORIGIN   AND   NATURE   OF   ESTATES   FOR  YEARS. 


Sect.    1.  Estates  less  than  Freehold. 

2.  Origin  of  Estates  for  Years. 

3.  Description  of. 
9.  Introduction  of  long  Terms. 

1 0.  Tenant  for  Years  has  no  Seisin. 
12.  But  must  make  an  Entry. 
15.  An  Entry  before  the  Lease 
begins  is  a  Disseisin. 
t 
Section  1.     Having  treated  of  the  different  freehold  estates, 
we  now  come  to  consider  of  those  estates  or  interests  in  land 


Sect.  18.  Estates  for  Years  may  com- 
mence in  future 
19.  And  be  assigned  before  Entry. 

22.  May  determine  by  Proviso. 

23.  Are  Chattels  Real. 

24.  And  vest  in  Executors. 
34.  A  Freehold  cannot  be  derived 

from  a  Term. 


250  Title  VIII.     Estate  for  Years.     Ch.  I.  s.  1—5. 

that  are  less  than  freehold ;  of  which  there  are  four  sorts : — 
1.  Estates  for  years.  2.  Estates  at  will.  3.  Tenancies  from 
year  to  year.     4.  Estates  at  sufferance. 

2.  It  has  been  stated  that,  after  the  Conquest,  the  demesnes  of 
the  lords  of  manors  were  generally  cultivated  by  their  villeins  to 

whom  small  portions  of  lands  were  allotted  for  their  sup- 
223*     port  and  maintenance,  to  be  held  at  the  mere  will  of  *the 

lord.  But  as  to  those  persons  whose  condition  was  free, 
it  became  customary  to  grant  them  lands  for  a  certain  number 
of  years,  to  be  held  in  consideration  of  a  return  of  corn,  hay,  or 
other  portion  of  their  crops ;  by  which  they  acquired  a  certain 
interest  in  their  lands,  though  much  inferior  to  an  estate  of 
freehold.  Thus  Bracton  says, — Poterit  enim  quis  terram  alicui 
concedere  ad  terminum  annorum,  et  Me  eandem,  infra  terminum 
ilium,  alteri  dare.  And  a  tenant  for  years  was  called  Firma- 
rius.  (a) 

3.  This  estate  is  thus  described  by]  Littleton  : — "  Tenant  for 
term  of  years  is,  where  a  man  letteth  lands  or  tenements  to  an- 
other for  term  of  certain  years,  after  the  number  of  years  that  is 
accorded  between  the  lessor  and  the  lessee,  and  the  lessee  enter- 
eth  by  force  of  the  lease ;  then  is  he  tenant  for  years."  And  if 
an  agreement  be  made  for  the  possession  of  lands  for  half  a  year, 
or  a  quarter,  or  any  less  time,  the  lessee  is  considered  as  tenant 
for  years,1  and  is  so  styled  in  all  legal  proceedings ;  a  year  being 
the  shortest  period  of  which  the  law  will  in  this  case  take  no- 
tice. (6)  2 

4.  Where  an  estate  is  limited  to  a  person  for  twenty-one  years, 
■if  J.  S.  shall  so  long-  live,  it  is  an  estate  for  years  only;  not  an 
estate  for  the  life  of  J.  S.,  because  there  is  a  fixed  period,  beyond 
which  it  cannot  last,  (c) 

5.  Where  a  person  devises  lands  to  his  executors  for  payment 
of  his  debts,  or  until  his  debts  are  paid  ;  the  executors  only  take 
an  estate  for  so  many  years  as  are  necessary  to  raise  the  sum 

(a)  Ante,  Dissert,  c.  3.  s.  52,  53.     Bract.  27.  a. 

(b)  Litt.  s.  58,  67.  (c)  1  Inst.  45.  b.     (Post,  §  34.) 


1  Because  the  whole  usufruct  is  in  him  ;  but  if  the  land  is  let  on  shares,  for  a  single 
season,  the  possession  is  not  changed.    4  Kent,  Comm.  95. 

2  As  to  the  manner  of  making  leases,  and  the  persons  competent  to  make  them,  see 
post,  Vol.  IV.  tit.  32,  ch.  5. 


Title  VIII.     Estate  for  Years.     Ch.  I.  s.  5—9.         251 

required.  (For  if  it  were  held  an  estate  for  their  lives  only,  and 
they  should  die  before  the  debts  were  paid,  the  creditors  would 
have  no  remedy.)  It  is  the  same  where  an  estate  is  devised  till 
such  time  as  a  particular  sum  shall  be  raised  out  of  the  rents 
and  profits  thereof,  (a) 

6.  Lord  Coke  says,  an  estate  for  years  is  frequently  called 
a  term,  terminus,  which  signifies  not  only  the  period  of  time  for 
which  it  is  to  continue,  but  also  the  estate  and  interest  that 
passes  for  that  period.  And  every  estate  or  term  for  years  must 
have  a  certain  beginning,  and  a  certain  end,  which  must  be 
ascertained  at  the  time  when  the  estate  is  created,  either  by  the 
express  limitation  of  the  parties,  or  by  a  reference  to  some  col- 
lateral act,  which  may,  with  equal  certainty,  measure  its  contin- 
uance. (6) 

7.  There  is  a  tenure  between  the  lessor  and  his  lessee  for 
years,  to  which  fealty  is  incident ;  and  also  a  privity  of  estate 
between  them,  (c) 

*  8.  Notwithstanding  the  permanent  interest  of  tenants  *  224 
for  years,  yet  their  possession  was  esteemed  of  so  little 
consequence  that  they  were  rather  considered  as  the  bailiffs  or 
servants  of  the  lord,  than  as  having  any  estate  in  the  land. 
Their  interests  might  be  defeated  by  a  recovery  in  a  real  action  ; 
because  the  recoveror  was  supposed  to  come  in  by  a  title  para- 
mount, therefore  not  bound  by  the  contracts  of  the  prior  posses- 
sor. This  was  altered  by  the  Statute  of  Gloucester,  6  Edw.  I., 
and  the  Statute  21  Hen.  VIII.,  by  which  tenants  for  years  are 
enabled  to  falsify  recoveries  had  by  collusion,  (d) 

9.  While  estates  for  years  might  be  defeated  by  a  recovery, 
it  is  no  wonder  that  they  were  usually  very  short ;  and  Lord 
Coke,  upon  the  authority  of  the  Mirror,  says,  that  by  the  ancient 
law  no  lease  was  allowed  for  more  than  forty  years  ;  because  a 
longer  possession,  especially  when  given  without  livery,  declar- 
ing the  nature  and  duration  of  the  estate  created,  might  tend 
to  defeat  the  inheritance.  But  Sir  W.  Blackstone  observes, 
that  this  law,  if  it  ever  existed,  was  soon  antiquated ;  for,  in 
Madox's  collection  of  ancient  charters,  there  are  some  leases 

(a)  1  Inst.  42.  a.  8  Rep.  96.  a.  Corbet's  case,  4  Rep.  81.  b.  1  P.  Wms.  509,  518.  2  Vern. 
403.     5  East,  102. 

(J)  1  Inst.  45.  b.  (Evans  v.  Vaughan,  4  B.  &  C.  261.)     Tit.  32.  c.  5. 

(c)  Lit.  s.  132.  (c7)  Gilb.  Ten.  34.     1  Inst.  40.  a.     Tit.  30.  c.  11. 


252         Title  VIII.     Estate  for  Years.     Ch.  I.  s.  9—11. 

for  years  of  an  early  date,  which  considerably  exceed  that 
period ;  and  that  terms  for  three  hundred  and  a  thousand  years 
were  certainly  in  use  in  the  time  of  Edw.  III.,  and  probably  in 
that  of  Edw.  I.  And  it  appears  certain  that  after  the  statutes 
by  which  terms  for  years  were  protected  from  the  operation  of 
feigned  recoveries,  long  terms  were  frequently  created  for  the 
purpose  of  defrauding  the  lord's  right  of  wardship,  relief,  and 
other  feudal  incidents.  And  in  modern  times,  they  have  been 
still  more  extensively  introduced  in  mortgages  and  family  settle- 
ments, (a) 1 

10.  A  tenant  for  years  is  not  said  to  be  seised  of  the  lands, 
the  possession  not  being  given  to  him  by  the  ceremony  of  livery 
of  seisin.  Nor  does  the  mere  delivery  of  a  lease  for  years  vest 
any  estate  in  the  lessee,  but  only  gives  him  a  right  of  entry  on 
the  land ;  when  he  has  actually  entered,  the  estate  becomes 
vested  in  him,  and  he  is  then  possessed,  not  properly  of  the  land, 
but  of  the  term  for  years ;  the  seisin  of  the  freehold  still  remain- 
ing in  the  lessor.  And  it  has  been  stated  that  the  possession  of 
a  lessee*  for  years  is  considered  as  the   possession  of  a  person 

entitled  to  the  freehold,  (b) 
225  *         *  11.  The  distinction  between  the  possession  of  a  tenant 

for  years,  and  the  seisin  of  the  freehold,  was  fully  estab- 
lished in  Bracton's  time,  who  says,  that  if  a  person  first  creates  a 

(a)  1  Inst.  45.  b.    2  Bl.  Comm.  142.    Ante,  s.  8. 

(b)  Lit.  s.  59.     1  Inst.  200.  b.     Tit.  1. 

1  Leases  for  long  terms,  as,  for  example,  2000  years,  are  not  regarded  in  England 
as  leases,  in  the  ordinary  sense,  but  as  terms  to  attend  the  inheritance.  Denn  v. 
Barnard,  Cowp.  595,  597;  4  Kent,  Comm.  86.  But  in  the  United  States  they  are 
treated  altogether  as  personal  estate,  and  are  administered  accordingly,  as  other  chat- 
tels. Gay,  ex  parte,  5  Mass.  419;  Montague  v.  Smith,  13  Mass.  396;  Chapman  v. 
Gray,  15  Mass.  439;  Brewster  v.  Hill,  1  N.  Hamp.  350;  4  Kent,  Comm.  93.  In 
Massachusetts,  however,  lands  held  by  lease  for  the  term  of  one  hundred  years  or  more, 
have  all  the  attributes  of  real  estate,  so  long  as  fifty  years  of  the  term  remain  unex- 
pired, so  far  as  regards  the  devise  and  descent  thereof,  dower,  sales  by  executors,  ad- 
ministrators, and  guardians,  by  license  of  Court,  levying  of  executions  thereon,  and 
redemption,  whether  after  levy  or  mortgage.  Rev.  Stat.  1836,  ch.  60,  §  18.  In  Ohio, 
permanent  leaseholds,  renewable  forever,  are  in  all  respects  deemed  real  estate.  Rev. 
Stat.  1841,  p.  289.  In  Vermont,  lessees  for  years  in  possession,  on  a  rent  reserved  cer- 
tain, of  whose  term  fifty  years  or  more  remain  unexpired,  are  deemed  freeholders,  so 
far  as  regards  qualification  to  hold  office,  to  serve  as  jurors  and  appraisers,  and  to  be 
received  and  justify  as  bail  and  sureties.  Verm.  Rev.  Stat.  1839,  p.  599.  [A  lease  of 
lands  for  ninety-nine  years,  renewable  forever,  is  a  mere  chattel  interest.  Spangler  v. 
Stanler,  1  Md.  Ch.  Decis.  36.] 


Title  VIII.     Estate  for   Years.     Ch.  I.  s.  11—15.         253 

term  of  years,  and  afterwards  enfeoffs  another  of  the  same  tene- 
ment, with  livery  of  seisin,  both  estates  shall  stand.  Quia  bene 
sese  compatiuntur  de-  eddem  re  duce  possessiones,  duni  tamen  ex 
diversls  causis,  sicut  tradltio  adfirmam,  et  traditlo  infeodo.  (a) 

12.  No  estate  for  years  can  be  created  by  a  lease,  or  other 
common  law  conveyance,  without  an  actual  entry  made  by  the 
person  to  whom  the  land  is  granted ;  for,  although  the  grantor 
has  done  every  thing  necessary  on  his  part  to  complete  the  con- 
tract, so  that  he  can  '  never  afterwards  avoid  it ;  yet  till  there  is 
a  transmutation  of  the  possession,  by  the  actual  entry  of  the 
grantee,  it  wants  the  chief  mark  and  indication  of  his 'consent, 
without  which  it  might  be  unwarrantable  to  adjudge  him  in 
actual  possession  to  all  intents  and  purposes ;  and  for  this  reason 
the  law  does  not  cast  the  immediate  and  actual  possession  on 
him  till  he  enters ;  neither  has  the  grantor  a  reversion  to  grant 
till  such  entry,  (b) 1 

13.  Upon  the  execution  of  a  lease,  the  lessee  acquires  an 
interest,  called  an  interesse  termini,  which  he  may  at  any  time 
reduce  into  possession  by  an  actual  entry.  This  may  be  made 
not  only  by  the  lessee  himself;  but,  in  case  of  his  death,  by  his 
executors  or  administrators,  (c)  2 

14.  It  should,  however,  be  observed  that,  in  consequence  of 
the  operation  of  the  Statute  of  Uses,  an  estate  for  years  may  now 
be  created  ivithout  an  entry,  (d) 

[As  where  a  freehold  estate  is  conveyed  to  A  and  his  heirs,  to 
the  use  of  B  for  ninety-nine  years,  with  remainder  to  the  grantor 
in  fee ;  in  this  case  A  has  only  a  momentary  seisin  to  serve  the 
use  which  is  executed  in  B,  and  to  which  the  statute  instantly 
annexes  the  possession  and  legal  estate,  without  B's  actual 
entry.] 

15.  If  the  lessee  enters  before  the  time  when  the  estate  for 

(a)  Bract,  lib.  2.  c.  18.  s.  7. 

(b)  1  Inst.  40.  b.     51.  b.    270.  a.     Bac.  Ab.  Leases,  M.  (4  Kent,  Coram.  97.) 

(c)  1  Inst.  40.  b.  {d)  Tit.  11.  c.  4.     (4  Kent,  Coram.  97.) 


[J  Where  demised  premises  are  destroyed  after  the  execution  of  the  lease,  and  before 
the  commencement  of  the  term,  and  before  the  lessee  has  taken  possession,  the  lessee 
is  not  liable  for  rent  on  the  lease.     Wood  v.  Hubbell,  5  Barb.  Sup.  Ct.  001.] 

[-  Under  a  joint  lease  to  two  tenants,  the  occupation  of  one  is  suflicient  to  make  both 
liable  for  the  rent.     Kendall  v.  Carland,  5  Cush.  74.] 
VOL.  I.  22 


254         Title  VIII.     Estate  for  Years.     Gh.  I.  s.  15—19. 

years  is  to  commence,  it  is  a  disseisin;  and  no  continuance  of 
possession,  after  the  commencement  of  the  term,  will  purge  it,  or 
alter  the  estate  of  the  lessee.1  But  such  entry  of  the  lessee, 
before  the  commencement  of  the  term,  will  not  divest  or  turn 
such  term  to  a  right ;  so  that  the  lessee  of  the  term  may  assign 

it  over. 
226  *        *  16.  A  made  a  lease  to  B  on  the  23d  of  September,  to 

hold  to  him  for  eighty-one  years  from  Michaelmas  follow- 
ing:. The  lessee  entered  before  Michaelmas,  and  continued  in 
possession  for  some  years  ;  then  the  lessor  reentered  ;  the  lessee 
being  out  of  possession,  assigned  over  the  term  to  the  plaintiff's 
lessor,  who  brought  an  ejectment.  Judgment  was  given  for  the 
plaintiff;  and  the  Court  held,  that  the  term  not  being  to  begin 
till  Michaelmas,  this  was  till  then  a  future  interest ;  that  the 
lessee's  entry  before  was  a  disseisin,  not  a  possession  by  virtue  of 
the  lease,  (a) 

17.  Where  the  commencement  of  an  estate  for  years  is  limited 
from  a  time  past,  and  the  lessee  was  in  possession  prior  to  that 
period,  it  shall  be  intended  that  he  entered  and  occupied  before, 
by  agreement ;  therefore  it  is  not  a  disseisin,  (b) 

18.  An  estate  for  years  may  be  created  to  commence  in  futuro, 
though  an  estate  of  freehold  cannot ;  for  where  an  estate  for 
years  is  created  to  commence  in  futuro,  the  freehold  is  not  there- 
by put  in  abeyance,  but  still  continues  in  the  lessor,  so  that  he  is 
capable  of  answering  the  prcccipes  of  strangers  which  may  be 
brought  against  him.  And  before  the  abolition  of  military 
tenures,  he  was  liable  to  perform  the  services  that  were  due  for 
the  feud,  (c) 

19.  Where  an  estate  for  years  is  granted  to  commence  in 
futuro,  it  cannot  of  course  -be  executed  by  an  immediate  entry, 
as  that  would  be  a  disseisin ;  it  is,  therefore,  only  an  interesse 

termini;  but  still  the  lessee  may  assign  it  over;  and  even  if  a 

t 

(a)  Hennings  v.  Brabason,  1  Lev.  45.    Bridg.  Bep.  1, 

(b)  Waller  v.  Campian,  Cro.  Eliz.  906.     9  Vin.  Ab.  992.  (c)  Tit.  1.  s.  32. 

1  But  his  possession  is  sufficient  to  maintain  trespass  against  cf  mere  stranger. 
Therefore,  where  A  demised  to  B  for  one  hundred  years  ;  and  subject  thereto,  demised 
for  two  hundred  years  to  C,  who  entered,  but  B  did  not ;  and  afterwards  D,  a  creditor 
of  A,  issued  and  executed  an  elegit  upon  the  lands,  which  were  accordingly  delivered 
to  him  ;  it  was  held  that  C  was  entitled  to  the  possession  against  D,  and  might  main- 
tain trespass  against  him.     Chatfield  v.  Parker,  2  M.  &  R. 540  ;  8  B.  &  C.  543. 


Title  VIII.     Estate  for   Years.     Ch.  I.  s.  19—22.       255 

stranger  enters  by  wrong,  yet  such  grant  will  transfer  the  lessee's 
power  of  entry,  and  right  of  reducing  the  estate  into  possession. 
For  till  the  entry  of  the  lessee,  the  estate  is  not  executed,  but 
remains  in  the  same  plight  as  it  was  when  the  lease  was  made  ; 
so  that  no  intermediate  act,  either  of  the  lessor,  or  of  a  stranger, 
can  divest  or  disturb  it ;  because  whoever  comes  to  the  posses- 
sion, whether  by  right  or  by  wrong,  takes  it  subject  to  such 
future  charge,  which  the  lessee  may  execute  whenever  he  thinks 
fit,  as  by  a  title  prior  and  paramount  to  all  such  intermediate 
violations  of  the  possession,  (a) 

20.  A  person  made  a  lease  for  years,  to  commence  at  a  future 
period  ;  after  the  expiration  of  that  time,  but  before  any  entry  by 
the  lessee,  the  lessor  being  still  in  possession,  the  lessee 
granted  *  over  his  term  and  interest.     Resolved,  that  the    *  227 
grant  was  good  ;  because  the  interesse  termini  of  the  lessee 

was  not  divested  or  turned  to  a  right,  but  continued  in  him  in 
the  same  manner  as  when  it  was  first  granted  ;  and  was  so  trans- 
ferred over  to  another,  who  by  his  entry  might  reduce  it  into  pos- 
session whenever  he  pleased,  (b) 

21.  If,  however,  a  person  entitled  to  an  estate  for  years,  to 
commence  in  fiduro,  onf;e  enters,  and  is  put  out  of  possession, 
he  cannot  afterwards  grant  over  his  term  to  a  stranger ;  for  by 
his  entry  the  estate  for  years  was  actually  executed ;  and,  being 
after  that  defeated  by  the  entry  of  a  stranger,  the  lessee  has 
only  a  right  of  entry  left  in  him ;  which  the  policy  of  the  law 
will  not  suffer  him  to  transfer  over  to  a  stranger,  no  more 
than  a  right  of  action ;  lest  such  transfer  should  encourage 
maintenance,  (c) 

22.  Though  an  estate  of  freehold  cannot  be  made  to  cease  by 
the  direction  of  the  parties,  but  must,  except  in  the  case  of  uses, 
be  taken  from  the  person  in  whom  it  is  vested,  by  means  some- 
what similar  to  those  by  which  it  was  given  to  him  ;  yet  it  is 
otherwise  in  the  case  of  an  estate  for  years  ;  as  that  may  be 
made  to  cease  by  a  proviso  in  the  conveyance  itself,  upon  the 
performance  of  any  particular  act.  The  practice  in  conveyancing 
has,  therefore,  long  been,  where  terms  for  years  are  created,  to 

(a)  (Hennings  v.  Brabason,  1  Lev.  45.)     Rac.  Ab.  Leases,  M. 

On  Wheeler  v.  Thoroughgood,  Cro.  Eliz.  127.     1  Leon.  118.     Saffin's  case,  5  Rep.  124.  a. 
Tit.  35.  c.  10.  s.  45.     1  Inst.  46.  b. 
(c)  Cro.  Eliz.  15.     5  Rep.  124.  a. 


256        Title  VIII.     Estate  for   Years.     Ch.  L  s.  22—26. 

insert  a  proviso,  that  when  the  trusts  of  the  term  are  satisfied, 
the  term  itself  shall  cease  and  determine,  (a) 1 

23.  Estates  for  years  are  considered  in  law  as  chattels  real, 
being  an  interest  in  real  property,  of  which  they  have  one  quality, 
immobility,  which  denominates  them  real ;  but  want  the  other — 
namely,  a  sufficient  legal  indeterminate  duration ;  the  utmost 
period  for  which  they  can  last  being  fixed  and  determined,  (b) 
Catalla  dicuntur  omnia  bona  mobilia,  et  immobilia,  quce  nee  feuda 
sunt  nee  libera  tenementa.  (c) 

24.  In  consequence  of  this  principle,  estates  for  years  do  not 
descend  to  the  heir  of  the  person  who  dies  possessed  of  them  ; 
but  vest  in  his  executors  or  administrators,  like  any  other  chattel. 
And  although  lands  are  now  frequently  demised  for  five  hun- 
dred  or   a   thousand   years,  yet  the   succession   continues   the 

same. 
228*         *25.  If  a  lease  for  years  be  made  to  a  bishop,  parson, 

or  other  sole  corporation,  and  his  successors,  yet  it  will 
go  to  the  executors  of  the  lessee  ;  because  a  term  for  years  being 
a  chattel,  the  law  allows  none  but  the  personal  representatives 
to  succeed  thereto ;  nor  can  this  mode  of  succession  to  a  chattel 
be  altered  or  controlled  by  any  limitation  of  the  party.  The 
king,  however,  by  his  prerogative,  may  transmit  a  chattel  to  his 
successors,  (d) 

26.  Estates  for  years  pass  from  executor  to  executor  in  in- 
finitum ;  but  whenever  the  course  of  representation  from  executor 
to  executor  is  interrupted  by  one  administration,  it  then  becomes 
necessary  for  the  ordinary  to  commit  administration  afresh  of 
the  goods  of  the  person  who  was  last  possessed  of  the  term,  in 

(ft)  1  Inst.  214.  b. 

{b)  1  Inst.  118.  b,    2  Bl.  Comm.  385.     Tit.  1.  s.  14.  (c)  Spelm.  Gloss,  voce  Catalla. 

(d)  1  Inst.  9.  a.  90.  a. 

P  Where  a  dwelling-house  was  let  for  five  years,  with  a  proviso  that  either  party,  if 
dissatisfied,  might  terminate  the  lease,  by  giving  the  other  party  six  months'  previous 
notice,  and  fulfilling  all  the  other  requirements  of  the  lease,  until  the  expiration  of  the 
six  months  ;  and  it  was  agreed  in  the  lease  that  the  lessee  should  pay  the  rent  by  board- 
ing the  lessor  and  his  family  twenty-seven  weeks  in  each  year,  between  the  months  of 
October  and  May :  it  was  held,  that  the  six  months'  notice  by  either  party  to  terminate 
the  lease,  must  be  so  given  as  to  expire  at  the  end  of  a  year  of  the  term.  Baker  v. 
Adams,  5  Cush.  99.  Where  a  lease  for  years  provides  that  in  case  the  rent  is  not  paid 
when  due,  the  lessor  may  enter  "  without  further  notice  or  demand,"  and  divest  the 
lessee,  no  previous  demand  of  rent  is  necessary  to  entitle  the  lessor  to  enter.  Fifty 
Associates  v.  Howland,  lb.  214.] 


Title  VIII.     Estate  for  Years.     Ch.  I.  5.  26—32.       257  ' 

his  own  right,  not  administered  by  the  former  executor.  A 
limited  or  special  administration  only  may  also  be  granted, — 
namely,  of  certain  specific  effects  ;  and  it  is  a  common  practice 
to  obtain  a  special  administration  of  a  term  for  years,  (a) 

27.  Where  there  are  several  executors,  who  all  prove  the  will, 
they  have  a  joint  and  several  interest  in  all  the  goods  and  chattels 
of  the  testator ;  therefore  a  disposition  by  one  of  them  only  of  a 
term  for  years  is  good.  But  one  administrator  cannot  convey  an 
interest  so  as  to  bind  the  other.  (6) 

28.  Where  a  person  appoints  two  or  more  executors,  if  only 
one  of  them  proves  the  will,  he  alone  will  become  entitled  to  any 
terms  for  years  whereof  the  testator  died  possessed,  and  may 
assign  them  accordingly,  (c) 

29.  An  executor  may  assign  a  term  for  years  before  he  has 
proved  the  will ;  but  the  will  must  be  afterwards  proved  in  the 
Ecclesiastical  Court  having  jurisdiction  over  the  place  where  the 
lands  lie,  otherwise  it  will  have  no  effect  as  to  the  term,  (d) 

30.  Where  a  term  for  years  is  specifically  devised,  the  assent 
of  the  executor  is  necessary.  But  if  the  legatee  disposes  of  the 
term  at  any  future  period,  the  assent  of  the  executor  will  be 
presumed,  (e) 

31.  A  purchaser  of  a  term  for  years  from  an  executor  is  not 
bound  to  see  to  the  application  of  the  purchase-money ;  even 
though  the  term  be  charged  with  the  payment  of  a  particular 
debt,  or  specifically  bequeathed;  because  terms  for  years  are 
subject  to  the  payment  of  all  debts,  in  the  first  instance.  (/) 

32.  By  the  Statute  of  Frauds,  29  Cha.  II.  c.  3,  s.  25,  a 
husband  *may  administer  to  his  deceased  wife;  and  is  *  229 
entitled  for  his  own  benefit  to  all  her  chattels  real,  whether 
actually  vested  in  her,  and  reduced  into  possession,  or  contingent, 
or  recoverable  only  by  action  or  suit.  And  it  is  now  settled  that 
the  representative  of  the  husband  is  entitled  as  much  to  this 
species  of  his  wife's  property,  as  to  any  other  ;  and  that  the  right 
of  administration  follows  the  right  of  the  estate,  and  ought,  in 
case  of  the  husband's  death,  after  the  wife,  to  be  granted  to  the 
next  of  kin  of  the  husband.     And  if  administration  de  bonis  non 

(a)  2  Bl.  Comm.  506.    11  Vin.  Ab.  107.         (b)  Dyer,  23.  b.    1  Ab.  Eq.  319.     1  Atk.  460. 

(c)  Cases  and  Opinions,  vol.  1.  399..  (d)  Wentw.  Ex.  34. 

(e)  Wentw.  Ex.  226.  (/)  Ewer  v.  Corbett,  2  P.  Wms.  148. 

22* 


258       Title  VIII.     Estate  for  Years.     Ch.  I.  s.  32—35. 

of  the  wife  is  obtained  by  any  third  person,  he  is  a  trustee  for  the 
representatives  of  the  husband,  (a) 

33.  The  husband  of  a  woman  possessed  of  a  chattel  real  is  also 
entitled  to  dispose  of  it  by  assignment,  but  not  by  will.  If, 
however,  he  does  not  execute  his  power,  and  his  wife  survives' 
him,  it  will  belong  to  her.  But  if  the  husband  be  an  alien, 
he  will  not  acquire  any  right  to  a  term  of  years  belonging  to 
his  wife,  (b) 

34.  An  estate  of  freehold  cannot  be  derived  from  a  term  for 
years.  Thus,  where  a  rent  was  granted  for  life,  out  of  a  long 
term  for  years,  it  was  resolved  to  be  a  good  charge  as  long  as 
the  term  lasted ;  but  that  it  was  only  a  chattel,  and  not  a  free- 
hold estate ;  for  it  was  repugnant  to  have  a  freehold  out  of  a 
term  for  years,  (c) 

35.  Estates  from  year  to  year  will  be  treated  of  in  the  next 
title. 

(«)  1  Inst.  351.  a.    Squib  v.  Wyn,  1  P.  Wms.  378. 

(b)  Anon.  9  Mod.  43.   Id.  104.    Tit.  5.  c.  1.  s.  27. 

(c)  Butt-'s  case.  7  Eep.  23.  a.  25.  a.    (Saffery  v.  Ellgood,  1  Ad.  &  El.  191.) 


259 


CHAP.  II. 


INCIDENTS    TO    ESTATES    FOR    YEARS. 


Sect.     1.  Tenants  for  Years  entitled  to 
Estovers. 
2.  But  cannot  commit  Waste. 
12.   Clause,  toithout  Impeachment 

of  Waste. 
16.  Accidents  by  Fire. 

1 8.  When  entitled  to  Emblements. 

19.  Estates  for   Years  subject  to 

Debts. 

20.  Alienable. 

21.  May  be  limited  for  Life,  with 

a  Remainder  over. 


Sect.  22.  But  not  Entailed. 

26.  Merged  by  a  Union  with  iln 
Freeh  old. 

29.  \_But  not  before  Entry  of  Ter- 
mor, it  being  then  an  inter- 
esse  Termini. 

32.  By  Surrender. 

40.  Terms  merge  in  Terms.'] 

44.  Equity  relieves  against  Mer- 
ger. 

47.  How  forfeited. 


Section  1.  Every  tenant  for  years  has  incident  to  and  insepa- 
rable from  his  estate,  unless  restrained  by  special  agreement,  the 
same  estovers  to  which  tenants  for  life  are  entitled,  (a) 

2.  But  a  tenant  for  years  having  an  interest  much  inferior  to 
an  estate  for  life,  has  only  a  right  to  the  temporary  and  annual 
profits  of  the  land ;  and  is,  therefore,  restrained,  as  well  as  ten- 
ants for  life,  from  cutting  down  timber  trees,  or  committing  any 
other  kind  of  waste.1  (b) 

3.  Tenant  for  years  is  also  punishable  for  permissive  waste;2 
and  is,  therefore*,  bound  to  keep  all  houses,  and   other  buildings 

(a)  1  Inst.  41.  b.     Tit.  3.  c.  1.  s.  16.  (b)  Tit,  3.  c.  2. 

1  For  the  American  law  of  Waste,  see  ante,  tit.  3,  ch.  2.  [See  Davis  v.  Alden.  2  Gray. 
309  ;  Kidd  v.  Dennison,  6  Barb.  Sup.  Ct.  9.] 

2  At  common  law,  the  lessor  for  years  was  not  bound  to  repair  the  building,  without  an 
agreement  for  that  purpose  ;  but  the  lessee,  who  had  the  use  of  it,  was  bound  to  repair. 
though  he  was  not  subject  to  an  action  at  common  law,  for  not  repairing.  Countess 
of  Shrewsbury's  case,  5  Co.  13,  b,  But  by  the  Statute  of  Gloucester,  6  Ed.  1,  c.  5,  the 
lessor  may  have  an  action  of  waste,  or  upon  the  case  in  the  nature  of  waste,  against  the 
lessee,  if  he  permits  the  building  to  be  out  of  repair,  unless  it  was  ruinous  at  the  time  of 
the  lease  ;  for  that  statute  extends  to  permissive,  as  well  as  to  voluntary  waste.  1  Saund. 
323  6,  note  (7,)  by  Williams;  Harnett  v.  Maitland,  16  M.  &  W.  257.  And  see  2 
Saund.  252  a,  note  (7) ;  Burdett  v.  Withers,  7  Ad.  &  El.  13C. 


260         Title  VIII.     Estate  for  Years.     Ch.  II.  s.  3—8. 

upon  the  land,  in  proper  and  tenantable  repair,  by  preserving 
the  roof  in  such  a  state  as  to  prevent  the  rain  from  falling  on  the 
timbers.  But  if  a  house  be  ruinous  at  the  time  when  the  lease 
is  made,  and  the  lessee  suffers  it  to  fall  down,  he  is  not  punish- 
able, for  in  that  case  he  is  not  bound  to  repair  it ;  yet  if 
231  *  he  cuts  *  down  timber  on  the  land,  and  employs  it  in  re- 
pairing the  house,  he  may  well  justify,  (a) 

4.  Lord  Coke  says,  —  if  a  tenant  for  years  builds  a  new  house, 
it  is  waste  ;  and  if  he  suffers  it  to  be  wasted,  it  is  a  new  waste. 
The  first  of  these  propositions  has  been  frequently  contradicted. 
And  Rolle  lays  it  down,  that  if  a  lessee  for  years  builds  a  new 
house  upon  the  land,  where  there  was  not  any  before,  it  is  not 
waste,  being  for  the  benefit  of  the  lessor,  (b) 

5.  The  Statutes  of  Marlbridge  and  Gloucester,  which  have 
been  already  stated,  extend  to  tenants  for  years  ;  so  that  they 
are  liable  to  the  same  actions,  and  the  same  penalties  for  waste 
committed,  as  tenants  for  life,  (c) 

6.  If  a  woman  possessed  of  a  term  for  years  takes  a  husband, 
who  commits  waste,  and  the  wife  dies,  the  husband  shall  be 
charged  in  an  action  of  waste  ;  because  by  the  marriage  he  be- 
came entitled  to  the  term,  (d) 

7.  It  is  enacted  by  the  Statute  11  Hen.  VI.  c.  5,  that  where  a 
tenant  for  years  assigns  over  his  estate,  and  continues  in  the 
receipt  of  the  profits,  an  action  of  waste  shall  lie  against  him. 
In  a  case  upon  this  statute  in  36  Eliz.,  it  was  resolved,  —  1.  That 
every  assignee  of  the  first  lessee,  mediate  or  immediate,  was 
within  the  act.  For  the  statute  was  made  to  suppress  fraud  and 
deceit,  therefore  should  be  taken  beneficially.  2.  That  the  per- 
son in  remainder  was  within  the  act,  as  well  as  the  person  in 
reversion  ;  because  in  equal  mischief,  (e) 

8.  Where  there  is  a  tenant  for  years,  remainder  for  life,  re- 
mainder in  fee,  and  the  tenant  for  years  commits  waste  ;  though 
the  remainder-man  for  life  cannot  bring  an  action  of  waste,  as 
not  having  the  inheritance,  yet  he  is  entitled  in  equity  to  an  in- 
junction. If  the  waste  be  of  a  trivial  nature,  and  d  fortiori  if  it 
be  meliorating  waste,  as  by  building  on  the  premises,  the  Court 
will   not   enjoin ;    nor  if  the    reversioner    or  remainder-man  in 

(«)  Lit.  s.  71.     1  Inst.  57.  a.  54.  b.  (b)  1  Inst.  53.  a.    22  Vin.  Ab.  439.     Hob.  234. 

(c)  Tit.  3.  c.  2.  s.  26.    Attersol  v.  Stevens,  1  Taunt.  183.  (d)  1  Inst.  54.  b. 

(e)  Booth's  case,  5  Rep.  77. 


Title  VIII.     Estate  for  Years.     Ch.  II.  s.  8—10.       261 

fee  be  not  made  a  party,  who  possibly  may  approve  of  the 
waste,  (a) 

9.  The  Court  of  Chancery  will  not  entertain  a  bill  against  a 
tenant  for  years  after  he  has  assigned  his  term,  with  the  consent 
of  the  lessor,  for  an  account  of  timber  cut  down  by  him,  and 
without  praying  an  injunction. 

10.  A  bill  was  brought  for  an  account  of  timber  cut  down  by 
the  defendant,  and  of  the  profit  of  some  stones  carried  off  the 
premises  by  him  also,  while  tenant ;  he  having  afterwards 

*  assigned  his  term,  with  the  consent  of  the  plaintiffs,  his     *  232 
lessors,  to  a  third  person ;  and,  consequently,  no  prayer  for 
an  injunction  to  stay  waste.  (6) 

Lord  Hardwicke.  "  The  question  is,  whether  a  bill  can  be 
brought  here  against  a  tenant,  after  the  estate  is  gone  out  of 
him,  for  an  account  of  waste  committed,  where  there  is  no  prayer 
of  an  injunction.  I  am  of  opinion  that  such  a  bill  is  improper, 
nor  has  any  authority  been  cited  to  support  it.  Waste  is  a  tort, 
and  punishable  as  such ;  and  the  party  has  also  a  remedy  for  the 
trees  cut  down,  by  an  action  of  trover.  The  staying  waste  is  a 
specific  remedy ;  and  while  the  lessee  continues  tenant,  it  is  to 
prevent  a  mischief  for  which,  when  done,  an  adequate  satisfaction 
by  way  of  damages  cannot,  in  many  instances,  be  given.  This 
is  the  ground  of  the  jurisdiction  of  this  Court  in  such  cases ;  and 
the  Court  having  such  ground,  will,  in  order  to  prevent  a  double 
suit,  and  as  incident  to  the  other  relief,  decree  an  account  of  the 
timber  felled,  or  the  waste  done.  This  is  a  general  principle  to 
prevent  suits ;  and  as  some  decree  must  be  made,  the  Court  will 
make  a  complete  one.  But  without  such  a  foundation,  there  is 
no  precedent  of  the  Court's  decreeing  damages ;  and  I  think  it 
would  be  very  improper  to  do  it,  as  it  would  tend  to  great  vexa- 
tion and  oppression  of  tenants  ;  and  I  am  glad  no  such  precedent 
is  to  be  found,  for  the  cases  cited  do  not  come  up  to  the  present. 
In  2  P.  Wms.  240,  it  is  not  clear  that  no  injunction  was  prayed. 
If  there  was,  then  it  is  but  a  common  case ;  if  there  was  not. 
then  the  plaintiff  was  entitled  to  a  moiety  of  the  timber  against 
the  defendant,  and  therefore  proper  matter  of  account  only  be- 
tween them.     As  to  1  P.  Wms.  406,  the  bill  was  against  an 

(«)  Mollineux  v.  Powell,  3  P.  Wms.  207.     Tit.  3.  c.  2.  s.  34. 
(0)  Jesus  Coll.  v.  Bloom,  2  Atk.  262. 


262       Title  VIII.     Estate  for  Years.     Ch.  II.  s.  10—15. 

executor  for  an  account  of  assets ;  and  in  a  case  of  a  mine,  which 
differs  from  timber  or  other  waste,  it  being  a  sort  of  trade,  and 
proper  for  an  account,  not  trover;  and  the  Court  has  decreed 
accounts  in  cases  of  mines,  which  they  would  not  do  in  any 
other  for  that  very  reason  ;  and  because  a  better  remedy  can  be 
given  here  than  at  law,  by  decreeing  inspections  under  ground, 
&c.  And  here,  if  the  plaintiffs  have  a  right,  they  may  have  their 
action  of  trover."  (a) 

11.  If  a  lessee  for  years  commits  waste  and  dies,  no  action  of 
waste  will  lie  against  his  executors  or  administrators.  But  the 
executors  or  administrators  of  a  tenant  for  years  are  punishable 

for  waste  done  while  they  are  in  possession,  (b) 
233  *         *  12.  Where  the  clause,  without  impeachment  of  waste, 

is  inserted  in  a  lease  for  years,  it  will  have  the  same  effect 
as  where  it  is  inserted  in  the  conveyance  of  an  estate  for  life. 
And  the  Court  of  Chancery  will  in  general  restrain  the  import  of 
it,  in  the  same  manner.  Thus  a  tenant  for  years,  though  with- 
out impeachment  of  waste,  will  not  be  allowed  to  dig,  and  carry 
away  the  soil  for  the  purpose  of  making  bricks,  (c) 

13.  The  Bishop  of  London  made  a  long  lease  of  some  lands 
at  Ealing,  in  Middlesex,  without  impeachment  of  waste ;  of 
which  there  were  about  twenty  years  unexpired.  The  lessee 
agreed  with  some  brick-makers,  that  they  might  dig  and  carry 
away  the  soil.  The  bishop  applied  to  the  Court  of  Chancery  for 
an  injunction,  which  was  granted,  (d) 

14.  The  Court  of  Chancery  will  not  permit  a  tenant  for  years, 
though  without  impeachment  of  waste,  to  fell  timber  just  before 
the  expiration  of  the  lease. 

15.  A  lease  was  made  by  a  bishop  for  twenty-one  years,  with- 
out impeachment  of  waste,  of  lands  upon  which  there  were  sev- 
eral timber  trees.  The  tenant  had  not  cut  down  any  of  them, 
till  about  half  a  year  before  the  expiration  of  his  term ;  but  then 
began  to  fell  them.  Upon  an  application  to  the  Court  of  Chan- 
cery, an  injunction  was  granted  against  him.  For  although  he 
might  have  felled  trees  every  year,  from  the  beginning  of  the 
term,  and  then  they  would  have  been  growing  up  gradually ;  yet 

(«.)  Whitfield  v.  Bewit,  2  P.  Wins.  240.     Tit.  3.  c.  2.  s.  17.  (b)  2  lust.  302. 

(c)  Tit.  3.  c.  2.  (d)  Ep.  London  v.  Webb,  1  P.  Wrns.  527. 


Title  VIII.     Estate  for  Years.     Ch.  II.  s.  15—17.  263 

it  was  unreasonable  that  he  should  let  them  grow  till  near  the 
end  of  his  term,  and  then  cut  them  all  down,  f  (a) 

16.  Tenants  for  years  are  exempted  by  the  Stat.  6  Ann.,  which 
has  been  already  stated,  from  all  actions  for  damages  on  account 
of  accidental  fire,  (b) 

17.  In  a  modern  case,  where  there  was  a  covenant  in  a  lease 
for  years  of  a  house,  to  rebuild,  without  any  exception  ;  and  the 
house  was  burnt  down  by  accident ;  it  was  held  that  the  lessee 
was  bound  to  rebuild  it ; 1  [so  where  the  covenant  is  to  re- 
pair.] (c) 

(a)  Abraham  v.  Bubb,  2  Freem.  63. 

(&)  Tit.  3.  c.  2.     Com.  Eep.  C29. 

(c)  Bullock  v.  Dommitt,  6  Term  R.  650.     Pym  v.  Blackburn,  3  Yes.  34. 


[  I  Upon  the  subject  of  waste  as  between  landlord  and  tenant,  see  the  cases  collected 
in  Comyn's  Landlord  and  Tenant,  Book  2,  ch.  I,  s.  2.] 

1  If  the  lessor  is  not  bound  by  covenant  to  repair,  the  lessee  must  still  perform  his 
covenant  to  pay  rent,  though  the  house  be  destroyed  by  fire.  Fowler  v.  Bott,  G  Mass. 
63  ;  Lamott  v.  Sterrett,  1  Flar.  &  J.  42  ;  Wagner  v.  White,  4  II.  &  J.  564;  Redding  v. 
Hall,  1  Bibb.  536.  And  if  the  tenant  has  covenanted  to  deliver  up  the  house  in  good 
repair,  at  the  expiration  of  the  lease,  he  is  bound  to  rebuild  the  house,  if  burned  down. 
Phillips  v.  Stevens,  16  Mass.  238;  Pasteur  v.  Jones,  Cam.  &IVorw.  194.  [If  the  lessee 
covenants  to  deliver  up  premises  in  as  good  order  as  at  the  date  of  the  lease,  ordinary 
wear  and  tear  excepted,  and  there  is  no  covenant  to  repair  or  rebuild,  he  is  not  bound 
to  rebuild  if  the  buildings  are  destroyed  by  fire.  Warner  v.  Hutchins,  5  Barb.  Sup. 
Ct.  666.]  Under  such  covenants,  the  tenant  is  not  justified  in  keeping  the  premises  in 
bad  repair  because  he  found  them  in  that  condition  ;  but  he  is  still  bound  by  the  terms 
of  his  contract.  Payne  v.  Haine,  16  M.  &  W.  541.  But  the  state  and  age  of  the 
building  arc  to  be  considered,  in  ascertaining  the  nature  and  reasonable  extent  of  the 
tenant's  obligation.  Stanley  v.  Towgood,  3  Bing.  N.  C.  4  ;  Burdett  v.  Withers,  7  Ad. 
&  El.  136.  He  is  not  liable  in  covenant  for  acts  done  by  him  before  the  time  of  the 
execution  of  the  lease ;  though  the  habendum  states  that  he  is  to  hold  from  a  day  prior 
to  its  execution,  and  prior  to  the  acts  done  ;  the  lessor's  remedy,  if  any,  being  in  some 
other  form  of  action.  Shaw  v.  Kay,  1  Exch.  R.  412.  But  if  the  house  were  destroyed 
or  the  tenant  dispossessed  by  a  public  enemy,  this  has  been  held  to  excuse  the  tenant 
from  performance  of  the  covenant.  Pollard  v.  Shaaffcr,  1  Dal.  210;  Bayly  v.  Law- 
rence, 1  Bay,  499.  [As  between  the  landlord  and  tenant  of  premises  let  from  year  to 
year,  there  is  no  obligation  on  the  landlord  to  do  substantial  repairs  in  the  absence  of 
express  stipulations  to  that  effect.  Gott  v.  Gaudy,  22  Eng.  Law  &  Eq.  173.  Under  a 
covenant  in  a  lease,  to  deliver  up  the  premises  in  as  good  order  and  condition  as  when 
received,  reasonable  use,  &c,  fire  and  other  casualties  excepted,  the  tenant  is  bound  to 
make  whatever  repairs  are  necessary  to  keep  the  premises  in  such  condition.  Jaques 
v.  Gould,  4  Cush.  384.  A  clause  in  a  lease  that  "the  owner  shall  not  be  liable  for  any 
repairs  on  the  premises  during  the  term,  the  same  now  being  in  perfect  order,"  has 
respect  only  to  the  condition  of  the  house  as  an  edifice  in  perfect  repair  and  not  to  the 
present  or  future  purity  of  the  air  within  it.  Foster  v.  Peyser,  9  Cush.  242.  In  a  sealed 
lease  of  a  house  for  a  private  residence,  there  is  no  implied  covenant  that  it  is  rcasona- 


264  Title  VIII.     Estate  for  Years.     Ch.  II.  s.  18. 

18.  Where  the  determination  of  an  estate  for  years  is  certain, 
as  where  lands  are  let  for  twenty-one  years,  or  any  other  num- 
ber, the  tenant  is  not  entitled  to  emblements  ;  because  it  was  his 
own  folly  to  sow,  when  he  knew  he  could  not  reap.1     But  when 


bly  fit  for  habitation.  lb.  Nor  in  a  general  lease  of  a  store  or  warehouse,  is  there  any 
implied  warranty  that  the  building  is  safe,  well  built,  or  fit  for  any  particular  use. 
Dutton  v.  Gerrish,  lb.  89.  It  is  implied  from  the  hiring  of  a  farm  for  agricultural 
purposes,  that  the  tenant  will  cultivate  the  land  according  to  the  rules  of  good  hus- 
bandry. Lewis  v.  Jones.  17  Penn.  State  R.  (5  Harris)  262.  When  a  house,  which  was 
built  for  a  hotel,  was  leased  without  stipulation  as  to  the  employments  that  should  be 
carried  on  in  it,  the  lessee  may  use  it  for  a  seminary,  or  may  underlet  it  for  that  pur- 
pose. Nave  v.  Berry,  22  Ala.  382.  Under  a  parol  demise  the  law  will  imply  an 
agreement  for  quiet  enjoyment,  but  not  for  good  title.  Bandy  v.  Cartwright,  20  Eng. 
Law  &  Eq.  374.     See  Noyes  v.  Anderson,  1  Duer  (N.  Y.)  342. 

A  lessee,  who,  in  appealing  from  the  judgment  of  a  lower  court,  giving  possession  of 
the  premises  to  the  lessor,  recognizes  in  pursuance  of  a  statute,  "to  pay  all  intervening 
rent  and  all  damages  and  loss  which  the  lessor  may  sustain  by  reason  of  the  withhold- 
ing of  the  possession  of  tli*  demanded  premises,  and  by  reason  of  any  damages  done 
to  the  premises  by  reason  of  such  withholding,  is  liable  prima  facie,  and  in  ordinary 
cases,  to  pay  rent  at  the  rate  reserved  in  the  lease  until  the  recovery  of  possession  by 
the  lessor,  although  the  buildings  on  the  premises  be  meanwhile  destroyed  by  fire  ; 
and  is  responsible  for  all  waste,  actual  and  permissive,  and  for  all  losses  including  the 
destruction  of  the  building,  if  not  proved  by  him  to  have  been  caused  by  inevitable 
accident.     Davis  v.  Alden,  2  Gray,  309. 

By  the  common  law  the  occupier  and  not  the  landlord  is  bound  as  between  himself 
and  the  public,  so  far  to  keep  buildings  in  repair,  that  they  may  be  safe  to  the  public : 
and  such  occupier  is  prima,  facie  liable  to  third  persons  for  damages  arising  from  any 
defect.  But  if  there  is  an  express  agreement  between  the  landlord  and  tenant,  that  the 
former  shall  keep  the  premises  in  repair,  so  that  if  there  were  a  recovery  against  the 
tenant,  he  would  have  his  remedy  over,  then  to  avoid  circuity,  the  party  injured  in  tbe 
first  instance  may  have  his  action  against  the  landlord.  Lowell  v.  Spaulding,  4  Cush. 
277  ;  New  York  v.  Corlics,  2  Sandf.  Sup.  Ct.  301 ;  Bellows  v.  Sackett,  15  Barb.  Sup. 
Ct.  96.] 

1  Whitmarsh  v.  Cutting,  10  Johns.  360;  Bain  v.  Clark,  Ibid.  424  ;  Harris  v.  Car- 
son. 7  Leigh,  632.  Where  a  farm  is  let  for  a  year  upon  shares,  the  lessor  and  lessee  are 
tenants  in  common  of  the  crops.  Caswell  v.  Districh,  15  Wend.  379;  Walker  v. 
Eitts,  24  Pick.  191.  [The  lessee  of  a  farm  under  a  lease,  stipulating  that  one  half  of 
the  hay  shall  be  consumed  on  the  farm,  and  the  other  half  divided  equally  between  the 
lessor  and  the  lessee,  has  the  entire  property  in  the  hay,  until  division.  The  division 
vests  the  portions  of  the  divided  half  in  the  lessor  and  lessee  respectively,  but  the  undi- 
vided half  to  be  consumed  on  the  farm,  remains  the  property  of  the  lessee.  Symonds 
v.  Hall,  37  Maine  (2  Heath)  354;  see  also  Munsell  v.  Carew,  1  Cush.  50;  Moulton  v. 
Bobinson,  7  Poster,  N.  H.  550;  Ross  v.  Swearingen,  9  Ire.  481 ;  Lathrop  v.  Rogers, 
1  Carter  (Ind.)  554.  A  lease  of  a  farm  and  sheep  contained  this  clause  :  "  The  wool 
now  growing  on  the  sheep,  and  the  lambs,  if  any  which  the  sheep  may  have,  I  shall 
claim  to  remain  my  property,  until  the  worth  of  it  and  them  is  paid  me  toward  the  use 
of  the  place."  Within  the  year,  no  rent  being  paid,  the  wool  and  lambs  were  attached 
as  the  property  of  the  lessee.     Held,  that  the  property  in  the  wool  and  lambs  remained 


Title  VIII.     Estate  for  Years.     Ch.  II.  s.  18.  265 

the  determination  of  an  estate  for  years  depends  on  an 

*  uncertain  event ;  as  where  a  tenant  for  life  lets  the  lands     *234 

for  years,  or  where  a  term  of  years  is  made  determinable 

on  the  death  of  a  particular  person  ;  there  the  tenant  will  be 

entitled  to  emblements ;  in  the  same  manner  as  a  tenant  for  life.1 

If,  however,  an  estate  for  years  determines  by  the  voluntary  act 

of  the  tenant  himself,  as  if  he  commits  a  forfeiture,  he  will  not 

be  entitled  to  emblements.  («)2 

(a)  Tit.  2.  c.  1.  1  Inst.  55.  b.  Davies  v.  Connop,  1  Price,  53.  16  East,  71.  (Bulwert?. 
Bulwer,  2  B.  &  Aid.  470.)  Oland  v.  Burdwick,  Cro.  Eliz.  460.  (Debow  v.  Colfax,  5  Halst. 
12S.) 


in  the  lessor  until  the  payment  of  the  rent.  Whitcomb  v.  Tower,  12  Met.  487.]  And 
in  Ohio  it  is  held  that  the  landlord  lias  a  lien  on  the  crop  for  his  share,  and  that  no  part 
can  be  removed  by  the  tenant,  until  the  landlord's  share  is  set  off.  Case  v.  Hart, 
11  Ohio  R.  364.     [See  10  Ired.  (N.  C.)  63  ;  11  lb.  12.] 

1  Where  land  was  let  for  a  term  of  years,  determinable  by  either  party  on  six 
months'  notice  to  the  other,  the  lessor  agreeing  that  if  he  determined  the  tenancy,  he 
would  allow  compensation  to  the  tenant  for  preparing  and  sowing  the  ground ;  and  he 
did  so  determine  it,  after  the  ground  was  sowed ;  it  was  held  that  the  tenant  was 
entitled  to  the  emblements.     Stewart  v.  Doughty,  9  Johns.  108. 

2  It  is  not  necessary  that  the  whole  act  of  forfeiture  be  the  immediate  act  of  the  ten- 
ant, provided  all  the  subsequent  proceedings  resulted  from  his  act.  Thus,  where  land 
was  let,  on  condition  that  if  the  lessee  should  incur  any  debt  upon  which  judgment 
should  be  entered  up,  and  execution  should  issue  thereon,  the  lessor  might  reenter,  and 
possess  the  land  as  of  his  former  estate  ;  and  the  condition  was  broken,  and  the  lessor 
entered  accordingly ;  it  was  held  that  the  lessor  was  entitled  to  the  emblements.  Davis 
v.  Eyton,  7  Bing.  154.  But  though,  in  such  cases,  the  tenant  himself  justly  forfeits  the 
emblements,  the  lease  being  terminated  by  his  own  fault,  yet  this  consequence  is  not 
visited  upon  his  under-tenant,  who  had  no  participation  in  destroying  the  estate. 
Therefore,  where  a  tenant  of  a  term  of  years,  defeasible  on  condition  subsequent,  made 
an  under-lease,  and  his  lessee  sowed  the  land,  after  which  the  first  tenant  broke  the  con- 
dition, and  the  landlord  thereupon  entered  for  the  breach,  it  was  held  that  the  under- 
tenant was  entitled  to  the  emblements.  Oland  v.  Burdwick,  Cro.  El.  46  ;  Bevans  v, 
Briscoe,  4  Har.  &  Johns.  139.  And  see  Doe  v.  Witherwick,  3  Bing.  11.  TJbs  doctrine, 
however,  is  not  applied  to  the  case  of  foreclosure  of  a  mortgage ;  for  in  such  case  it 
has  been  held  that  the  mortgagee,  or  purchaser,  and  not  the  lessee  of  the  mortgagor,  is 
entitled  to  the  crops  growing  on  the  premises  at  the  time  of  the  foreclosure  and  sale. 
Lane  v.  King,  8  Wend.  584.  [The  right  to  emblements  does  not  attach  until  the  seed 
is  sown:  preparing  the  land  to  receive  it  is  not  sufficient.  Price  v.  Pickett,  21  Ala. 
741.] 

Property  in  the  growing  crop  may  also  be  created  by  contract ;  as,  if  the  lessor 
should  covenant  that  the  lessee  shall  take  and  carry  away  to  his  own  use  the  corn 
that  shall  be  growing  on  the  premises  at  the  end  of  the  year ;  and  the  lessor  should 
afterwards  grant  the  reversion  to  a  stranger,  yet  the  property  in  the  corn  was  by  the 
covenant  well  transferred  to  the  lessee,  and  he  may  take  it  away,  though  it  be  not 
severed  during  the  term.  Grantham  v.  Hawley,  Hob.  132;  [Briggs  v.  Oaks,  26  Vt, 
3  Deanc,  138  ;  Harrower  v.  Heath,  19  Barb.  Sup.  Ct.  331.] 

vol.  i.  23 


266  Title  VIII.     Estate  for  Years.     Ch.  II.  s.  19. 

19.  Estates  for  years  being  chattel  interests,  and  vesting  in 
executors  or  administrators,  are  subject  to  the  payment  of  simple 
contract  debts ;  and  are  also  liable  to  be  sold  by  execution  for  the 


On  this  principle  the  rights  of  parties  arc  adjusted  in  regard  to  what  is  termed  the 
away-going  crop, — that  is,  the  crop  which  was  sown  during  the  term,  but  is  not  ripened 
for  gathering  until  the  term  has  expired.  If  it  is  expressly  covenanted  that  the  tenant 
shall  have  it,  he  may  take  it  away  after  the  term  has  expired  ;  or,  it  may  be  taken  and 
sold  on  process,  for  his  debts.  Deaver  v.  Rice,  4  Dev.  &  Batt.  431  ;  and  see  Austin  v. 
Sawyer,  9  Cowen,  39.  The  right  thus  reserved  is  considered  as  a  prolongation  of  the 
term,  as  to  the  land  on  which  the  crop  grows,  and  so  far  the  possession  of  the  land  re- 
mains in  the  tenant  until  the  crop  is  taken.  Boraston  v.  Green,  16  East,  81.  And 
though  where  the  lease  is  express,  the  terms  of  the  contract  must  govern,  even  against 
any  custom  or  usage  to  the  contrary  ;  yet  where  the  lease  is  silent,  the  custom  of  the 
country  is  admissible  in  evidence  to  determine  the  rights  of  the  tenant  as  to  the  away- 
going  crop,  as  well  as  to  other  particulars.  Wigglesworth  v.  Dallison,  1  Doug.  201 ; 
Webb  v.  Plummer,  2  B.  &  Aid.  746 ;  Hutton  v.  Warren,  1  M.  &  W.  466  ;  Holding  v. 
Pigott,  7  Bing.  465  ;  5  M.  &  P.  427  :  Beavan  v.  Delahay,  1  H.  Bl.  5  :  Stultz  v.  Dickey, 
5  Binn.  285  ;  Biggs  v.  Brown,  2  S.  &  R.  14 ;  Demi  v.  Bossier,  1  Pennsyl.  R.  224;  Van 
Doran  v.  Everitt,  2  South.  460 ;  Templeman  v.  Biddle,  1  Harringfr.  522 ;  Craig  v.  Dale, 
1  Watts  &  Serg.  509:;  Van  Ness  v.  Packard,  2  Peters,  138  ;  Wilcox  v.  Wood,  9  Wend. 
349.  The  right  of  the  outgoing  tenant  to  remove  the  manure,  made  on  the  farm  during 
his  tenancy,  depends  on  express  stipulation,  or  on  the  settled  and  uniform  custom  of 
the  country.  In  the  absence  of  any  such  contract  or  custom,  the  law  of  good  husbandry 
requires  that  it  be  used  on  the  farm,  and,  therefore,  he  cannot  remove  it.  Lassell  v. 
Eeed,  6  Greenl.  222  ;  Middlebrook  v.  Corwiu,  15  Wend.  169  ;  Watson  v.  Welch,  1  Esp. 
131  ;  Brown  v.  Crump,  1  Marsh.  567 ;  Powley  v.  Walker,  5  T.  R.  573  ;  and  see  Rinne- 
hart  v.  Olwine,  5  Watts  &  Serg.  163;  [Lewis  v.  Jones,  17  Penn.  State  R.  (5  Harris.) 
262 ;]  Roberts  v.  Barker,  1  Cr.  &  M.  808  ;  3  Tyrw.  945,  S.  C. ;  [see  Needham  v.  Al- 
lison, 4  Foster,  (N.  II.)  355.]  And  in  regard  to  the  custom,  it  is  only  where  the  con- 
tract is  silent,  or  its  meaning  is  doubtful,  that  evidence  of  the  custom  is  admissible ; 
and  in  order  to  be  admitted,  the  custom  must  be  proved  to  be  certain  and  uniform,  and 
known  to  the  parties,  or  to  be  so  general  and  well  established  that  the  knowledge  and 
adoption  of  it  by  the  parties  may  well  be  presumed.  Macomber  v.  Parker,  13  Pick. 
176;  Stevens  v.  Reeves,  9  Pick.  198;  Collings  v.  Hope,  3  Wash.  149;  Wood  v. 
Hickock,  2,  Wend.  501. 

And  generally,  in  regard  to  those  things  which  a  tenant  may  remove  from  the  prem- 
ises, after  having  himself  affixed  them,  it  may  here  be  observed,  that  it  is  not  neces- 
sarily to  be  inferred  from  the  annexation  that  the  chattel  annexed  has  become  the 
property  of  the  freeholder  or  landlord  ;  but  whether  it  has  become  so,  or  not,  may  be  a 
question  upon  the  evidence  ;  and  the  jury  may,  from  the  user  and  other  circumstances, 
infer  an  agreement,  made  when  the  chattel  was  annexed,  that  the  original  owner  should 
have  liberty  to  take  it  away.  Wood  v.  Hewett,  8  Ad.  &  El.  913,  N.  S.;  Gibbons  on 
Fixtures,  [Doak  v.  Wiswell,  38  Maine,  (3  Heath,)  569  ;  King  v.  Wilcomb,  7  Barb.  Sup. 
Ct.  263 ;  Dubois  v.  Kelly,  10  lb.  496 ;  Lawrence  v.  Kemp,  1  Duer,  N.  Y.  363 ;  Teaff 
v.  Hewitt,  1  Ohio  State  R.  511;  Mason  v.  Eenn,  13  111.  529;  Grangers  Michigan 
Canal,  lb.  745  ;  Einney  v.  Watkins,  13  Mis.  291 ;  Regina  v.  Haslam,  6  Eng.  Law  &  Eq. 
Rep.  221  ;  Ruffey  v.  Henderson,  8  lb.  305  ;  Wiltshear  v.  Cottrcll,  18  lb.  142;  Elliott  v. 
Bishop,  28  lb.  484  ;  Bishop  v.  Elliott,  30  lb.  595.] 


Title  VIII.     Estate  for  Years.     Ch.  II.  s.  19—23.     267 

payment  of  debts  due  by  judgment.  But  if  a  term  for  years  be 
assigned  to  a  bond  fide  purchaser,  without  notice,  before  execu- 
tion is  actually  sued  out  and  delivered  to  the  sheriff,  it  cannot 
afterwards  be  taken  by  a  creditor,  (a) 

20.  [A  lessee   may  part  with   his  whole  term,  unless 
restrained  *  by  a  particular  agreement  j1  so  he  may  lease  a     *  235 
part  of  it ;  in  the  former  case  it  will  be  an  assignment,  in 

the  latter  an  underlease?  And  although  a  lessee  cannot  limit 
his  term  by  way  of  remainder  in  the  proper  sense  of  that  word, 
yet  by  assigning  it  to  a  trustee  upon  trusts,  or  by  executory 
bequest,  interests  in  the  nature  of  remainders  may  be  created  by 
deed  or  will.]  (b) 

21.  By  the  old  law,  a  gift  of  a  term  for  years  like  that  of  any 
other  chattel,  for  an  hour,  was  a  gift  of  the  whole  estate  and 
interest ;  therefore  there  could  be  no  subsequent  limitation  of  a 
term  for  years,  after  an  estate  was  carved  out  of  it.  But  this 
was  soon  altered ;  and  it  has  been  long  settled  that  a  term  for 
years  may  be  limited  to  a  person  for  life,  with  a  limitation  over 
to  any  number  of  persons  in  esse  for  life ;  [and  it  may  also  be 
limited  to  a  person  not  in  esse,  or  not  ascertained,  provided  such 
limitation  take  effect,  if  at  all,  within  a  life  or  lives  in  being,  or 
twenty-one  years  after.]  (c) 

22.  Terms  for  years,  cannot,  however,  be  entailed.  1.  Because 
they  are  not  within  the  Statute  De  Donis,  being  estates  of  in- 
heritance. 2.  Because  if  a  quasi  entail  of  a  term  for  years  were 
allowed,  it  would  be  unalienable,  as  no  fine  or  recovery  could  be 
had  of  a  term ;  so  that  the  disposition  of  a  term  for  years  to  a 
person  and  the  heirs  of  his  body,  is  a  disposition  of  the  entire 
interest  in  the  term,  (d) 

23.  A  distinction  has  been  made  by  Lord  Coke  between  a 

(a)  Tit.  14.  s.  67.  (b)  1  Burr.  284. 

(c)  Dyer,  74,  18.     Tit.  38.  c.  19. 

(d)  Dyer,  7.  a.  8.  Tit.  2.  c.  1.  s.  24.  4  Mad.  361.  19  Ves.  73.  See  Howard  v.  Duke  of 
Norfolk,  2  Swanst.  454. 

1  If  the  agreement  is  that  he  shall  not  assign  or  alienate  his  estate,  or  term,  or  the 
premises,  an  alienation  or  underlease  of  part  is  no  breach.  Jackson  v.  Silvernail,  1 5 
Johns.  278 ;  Jackson  v.  Harrison,  17  Johns.  66  ;  see  post,  tit.  13,  ch.  1,  §  42. 

[-  If  a  lessee  underlets  a  part  of  the  demised  premises,  and  the  sub-tenant  is  recog- 
nized as  such,  and  the  rent  is  demanded  of  him  by  the  lessor,  the  lessee  and  sub-tenant 
are  not  jointly  liable  to  the  lessor  for  the  mesne  profits  of  the  whole  premises.  Fifty 
Associates  v.  Howland,  5  Cash.  214.] 


268      Title  VIII.     Estate  for  Years.     Ch.  II.  s.  23—25. 

limitation  of  a  term  in  gross,  or  subsisting  term,  to  a  man  and 
the  heirs  of  his  body,  and  a  similar  limitation  of  a  term  de  novo. 
In  the  first  case  the  residue  of  the  term  will  vest  in  the  executors 
of  the  person  to  whom  it  is  so  limited.  But  in  the  latter  case  he 
was  of  opinion  that  the  term  would  only  continue  as  long  as  the 
person  to  whom  it  was  limited  had  heirs  of  his  body,  and  that 
upon  failure  of  such  heirs  the  term  would  cease.  This  distinction 
has  been  long  since  exploded ;  and  it  is  now  settled,  that  where 
a  term  for  years  is  limited  to  a  person  and  the  heirs  of  his  body, 
it  will  continue,  though  the  person  to  whom  it  is  so  limited 
should  die  without  issue,  (a) 

24.  A.  Pile,  by  indenture,  demised  lands  to  a  trustee,  his  ex- 
ecutors, and  administrators,  for  ninety-nine  years,  in  trust  for 
himself  and  his  wife  for  their  lives,  and  the  life  of  the  survivor ; 
and  after  the  death  of  the  survivor,  in  trust  for  the  heirs  of  their 

two  bodies ;  and  in  default  of  such  issue,  then  in  trust  for 
236*      the    heirs   *of  the    survivor.     They  had   issue   one    son. 

The  husband  died ;  afterwards  the  son  died,  an  infant ; 
the  mother  administered  to  her  husband  and  son,  and  assigned 
the  term  to  the  defendant  Rod.  The  question  was,  who  was 
entitled  to  the  trust  of  this  term?  whether  it  belonged  to  the 
plaintiff,  who  was  the  heir  at  law  of  A.  Pile,  or  to  the  defendant 
Rod,  as  assignee  of  the  wife  ?  It  was  decreed  that  it  belonged 
to  Rod,  and  had  not  ceased,  (b) 

25.  [Although  chattels  real  and  other  personal  estate  cannot 
be  entailed,  for  the  reasons  above  stated,  yet  through  the  medium 
of  trusts,  and  by  executory  devise,  they  may  be  limited,  so 
as  in  a  great  measure  to  answer  the  purposes  of  entail,  and 
indeed  are  susceptible  of  modification,  so  as  to  be  confined  in  a 
particular  course  of  devolution,  and,  except  for  the  purposes  of 
accumulation,  rendered  unalienable  for  any  number  of  lives  in 
being,  and  twenty-one  years  after,  with  a  further  period  allowed 
for  gestation ;  at  the  end  of  which  period  the  personalty  will  vest 
absolutely  in  the  person  taking  under  the  limitation  trust  or 
executory  bequest.]  f 

(a)  S  Rep.  87.  a.  Leventhorpe  v.  Asliby,  1  Roll.  Ab.  831.   Leonard  Lovie's  case,  13  Rep.  78. 
(6)  Hayter  v.  Rod,  1  P.  Wms.  360. 

[tFor  instances  of  bequests  of  personalty,  which  in  devises  of  real  estates  would 
give  express  or  implied  estates  tail,  see  Vol.  II.  Rop.  Legacies,  ch.  22,  sect.  1  &  2. 
Edition  1828,  by  the  Editor  of  the  present  work.] 


Title  VIII.     Estate  for  Years.     Ch.  II.  s.  26— 29.       269 

26.  Where  a  term  for  years  becomes  vested  in  the  person  who 
is  seised  of  the  freehold,  by  which  there  is  a  union  of  the  two 
interests  in  one  person  at  the  same  time,  [and  there  is  no  inter- 
vening estate  between  the  term  and  the  freehold,]  the  term 
merges  in  the  freehold,  and  becomes  extinct,  (a)  ] 

27.  Tenant  pour  autre  vie  made  a  lease  for  years,  and  died, 
living  the  cestui  que  vie ;  it  was  agreed  that  by  this  the  lessee 
for  years,  having  the  possession,  became  occupant;  and  the 
accession  of  the  freehold  merged  in  his  estate  for  years.  But  if 
in  that  case  the  lessee  for  years  had  made  a  lease  at  will,  and 
then  the  tenant  pour  autre  vie  had  died,  the  tenant  at  will  would 
have  been  the  occupant ;  consequently  the  term  for  years,  being 
in  another  person,  would  not  be  merged ;  there  being  no  union 
of  the  term  and  the  freehold  in  one  person,  (b) 

28.  A,  seised  in  fee,  demised  to  B  for  one  hundred  years,  to 
begin  at  a  future  time  ;  and  before  that  time  [granted  the  rever- 
sion in  fee  to  C,  who  demised  the  land  to  D,]  for  twenty-one 
years,  to  begin  presently.     B,  before  the  commencement 

of  his  *term,  assigned  it  to  A,  who  afterwards  granted  a  *237 
rent-charge,  for  which  the  grantee  distrained  D.  The 
question  was,  whether  the  future  term  [of  one  hundred  years] 
was  drowned  in  the  inheritance,  or  if  it  had  any  existence  in  A, 
so  that  he  might  thereout  grant  the  rent ;  for  then  it  would  [have 
preference  over]  the  second  lease,  being  prior  to  it,  and  by  conse- 
quence be  liable  to  the  payment  of  the  rent-charge.  It  was  re- 
solved that  the  first  term  was  [drowned  in  the  inheritance.}  (c) 

29.  [The  language  of  the  report  in  the  above  case  is  appli- 
cable to  merger ;  but  it  must  be  understood  as  referring  only  to 
extinguishment ;  because  the  term  of  one  hundred  years  in  B 
was  only  an  interesse  termini;  and  though,  as  such,  it  might  by 
release  to  the  reversioner  be  extinguished,  still,  not  being  an 
actual  estate,  could  not  properly  be  said  to  merge.  From  this 
case,  it  appears,  that  an  actual  term  intervening  between  an 
interesse  termini  and  the  reversion,  will  not  prevent  the  extin- 
guishment by  release  of  the  interesse  termini,  although,  had  the 
latter  been  an  actual  estate,  it  would  have  been  prevented  by  the 

(«)  Dyer,  112,  49.     (Roberts  r.  Jackson,  1  Wend.  478.) 

(b)  Chamberlain  v.  Ewer,  Bulst.  12. 

(c)  Salmon  v.  Swann,  Cro.  Jac.  619.    3  Prest.  Conv.  122. 

1  See  post,  Vol.  VI.  tit.  39,  where  the  subject  of  Merger  is  more  fully  treated. 

23* 


270        Title  VIII.     Estate  for  Years.    Ch.  II  s.  29—33. 

intervening  term.  Neither  will  the  interesse  termini  intervening 
between  a  prior  term  and  the  reversion,  prevent  the  merger  of 
the  term  in  the  reversion,  when  they  unite  in  the  same  person  in 
the  same  right,  (a) 

30.  Thus  in  the  case  of  Doe  v.  "Walker,  A  granted  a  lease  to 
B  for  twenty-one  years,  which  would  expire  at  Michaelmas, 
1809  ;  in  December,  1799,  A  granted  a  further  lease  to  B  of  the 
same  premises,  for  sixty  years,  to  commence  from  Michaelmas, 
1809 ;  A  died  in  December,  1800,  and  devised  the  reversion  to 
B  for  life.  In  1806,  B  conveyed  his  life-estate  to  C.  It  was 
decided  by  Bayley,  J.,  that  the  interesse  termini  of  the  lease  of 
1799,  which  was  to  commence  in  1809,  was  not  merged  in  B's 
life-estate,  (b) 

31.  It  would  seem  from  the  preceding  case,  that  an  interesse 
termini,  to  commence  in  futuro,  and  which  consequently  does 
not  give  an  immediate  right  to  the  possession,  is  not  discharged 
or  extinguished,  by  the  mere  accession  of  the  freehold,  devised  to 
the  person  entitled  to  the  interesse  termini,  so  long  as  it  gives 
only  a  future  right  of  possession. 

32.  Merger  of  estates  for  years  may  take  place  in  consequence 
of  a  surrender  of  them  to  the  person  in  remainder,  or  reversion  ; 

but  a  term  cannot  be  merged  by  surrender,  till  the  tenant 
238  *     has  *  entered ;  for  before  entry,  it  is  an  interesse  termini 

only,  and  there  is  no  reversion  in  which  it  can  merge.1 
If,  however,  the  lessee  for  years  enters,  and  after  assigns  his 
estate- to  another,  the  assignee  may  merge  the  term  by  surrender, 
before  entry  ;  because,  by  the  entry  of  the  lessee,  the  possession 
was  severed  and  divided  from  the  reversion,  (c) 

33.  Lord  Coke  lays  it  down  as  a  general  rule,  that  a  man 
cannot  have  a  term  for  years  in  his  own  right,  and  a  freehold  in 
autre  droit,  to  consist  together.  As  if  a  man,  lessee  for  years, 
takes  a  feme  lessor  to  wife,  the  term  is  merged.  But  this  propo- 
sition has  been  denied,  for  in  Lichden  v.  Winsmore,  21  Jac.  I., 
it  was  held  that  if  a  person  was  lessee  for  years,  the  reversion  for 
life  to  A,  a  feme  covert,  and  the  lessee  granted  his  estate  to  the 
husband;  and  after  the  feme    died,  the   term  was  not  extinct, 

(a)  5  Bar.  &  Cress.  122.  (6)  5  Bar.  &  Cress.  111. 

(c)  1  Inst.  338.  a.    4  Bac.  Ab.  216.     Tit.  32.  c.  7. 


'  But  an  interesse  termini  may  be  released.     Salmon  v.  Swann,  Cro.  Jac.  G19. 


Title  VIII.     Estate  for    Years.    Ch.  II.  s.  33—37.    271 

because  the  husband  had  the  estates  in  several  rights,  for  the 
freehold  was  in  the  wife,  and  the  husband  only  seised  in  her 
right.]  (a) 

34.  Lord  Coke  lays  it  down,  that  a  man  may  have  a  freehold 
in  his  own  right  and  a  term  in  autre  droit.  Therefore,  if  a  man 
lessor  takes  the  feme  lessee  to  wife,  the  term  is  not  drowned ; 
but  he  is  possessed  of  it  in  her  right,  during  the  coverture.  The 
reason  of  this  doctrine  is  thus  given  by  Gilbert : — "  The  term 
being  existing  in  the  feme  till  the  intermarriage,  is  not  thereby 
so  drawn  out  of  her,  or  annexed  to  the  freehold,  as  to  merge 
therein ;  because  that  attraction,  which  is  only  by  act  of  law, 
consequent  upon  the  marriage,  would,  by  merging  the  term,  do 
wrong  to  a  feme  covert ;  and  so  take  the  term  out  of  her,  though 
her  husband  did  no  express  act  to  that  purpose  ;  which  the  law 
will  not  allow."  (b) 

35.  [It  is  correctly  stated  by  Mr.  Preston,  in  his  valuable 
Treatise  on  Merger,  that  the  true  distinction  established  by  the 
cases  is  not  generally  that  there  will  not  be  any  merger,  because 
the  two  estates  are  held  in  different  rights,  or  because  the  free- 
hold is  held  by  the  owner  of  the  term  in  his  own  right,  and  the 
term  in  autre  droit.  The  leading  distinctions  stated  by  him  on 
the  law  of  merger,  as  connected  with  the  subject  of  the  present 
title,  are  in  a  great  measure  comprehended  in  the  propositions 
contained  in  the  four  following  sections : — 

*  36.  When  estates  meet  in  the  same  person,  either  by  *  239 
act  of  law,  or  by  act  of  the  party,  and  he  holds  both  in 
his  own  right)  merger  takes  place  ;  as  where  the  reversion  in  fee 
descends  upon,  or  is  purchased  by,  the  lessee — for  nemo  potest 
esse  dominus  et  tenens.  (c)  It  should  seem,  however,  that  this 
proposition  must  be  taken  with  the  following  qualification : — 
That  when  several  estates  meet,  in  the  same  person,  and  are  held 
in  different  rights,  merger  will  not  take  place,  unless  the  power 
of  alienation  of  the  person,  in  whom  they  meet,  extends  to  both 
estates,   (d) 

37.  When  estates,  held  in  different  rights,  meet  in  the  same 

(a)  1  Inst.  332.  b.  11  Vin.  Ab.  441.  1  Roll.  Ab.  934.  And  see  Piatt  v.  Sleap,  Cro.  Jac. 
275.     Thorn  v.  Newman,  3  Swan.  603,  appendix.     Vid.  tit.  39,  Merger,  infra,  vol.  6. 

(b)  1  Inst.  338.  b.     Bac.  Ab.  tit.  Leases,  R. 

(c)  Lee's  case,  3  Leon.  110.  Chamberlain  v.  Ewer,  2  Bulst.  12.  Doe  v.  Walker,  5  Barn. 
&  C.  3. 

(d)  Lichden  v.  Windsmore,  2  Roll.  Rep.  472. 


272      Title  VIII.     Estate  for   Years.     Ch.  II.  s.  37—39. 

person,  by  act  of  the  party,  merger  will  take  place ; 1  as  where 
the  husband,  holding  the  term  in  right  of  his  wife,  purchases 
the  reversion  ;  or  where  an  executor  has  a  term  in  right  of  his 
testator,  and  purchases  the  reversion ;  but  in  the  latter  case  the 
term,  though  merged,  continues  assets,  (a) 

38.  When  estates,  held  in  different  rights,  meet  in  the  same 
person,  by  operation  of  law,  merger  does  not  take  place ;  as  in 
the  case  of  marriage,  where  a  woman,  being  a  termor,  marries 
the  reversioner,  the  term  does  not  merge,  because  it  devolves 
upon  the  husband  by  act  of  law.  Again,  in  the  instance  of 
descent,  where  the  husband  termor  marries,  and  afterwards  the 
reversion  descends  upon  his  wife.  So  with  respect  to  curtesy, 
when  lessee  for  sixty  years  marries  the  reversioner,  who  after- 
wards dies  before  the  expiration  of  the  term,  the  term  will  con- 
tinue during  the  wife's  life,  while  the  husband  is  seised  in  her 
right ;  and  it  should  seem  also,  after  her  death,  while  he  is  tenant 
by  the  curtesy ;  although  a  doubt  has  been  intimated  as  to  the 
latter  point.  Again,  in  the  case  of  executor  or  administrator, 
where  lessor  has  the  freehold  in  his  own  right,  and  the  term  de- 
volves upon  him  as  executor  or  administrator  of  the  lessee,  (b) 

39.  The  application  of  this  last  doctrine  between  husband  and 
wife,  when  the  husband  is  seised  of  an  estate  of  freehold  in  right 
of  his  wife,  is  obvious.  Upon  this  subject,  the  author  before 
mentioned  makes  the  following  observation  : — "  That  the  estate 
of  freehold  of  the  wife  cannot  merge,  is  a  consequence  flowing 
from  an  absence  of  a  right  in  the  husband  to  alien  that  estate. 

(a)  Moo.  171.  4  Leon.  38.  1  Roll.  Abr.  934.  pi.  9.  Bro.  Abr.  tit.  Executor,  pi.  174.  Ex- 
tinguishment, pi.  57.     1  L.  Raym.  520. 

(b)  2  Roll.  R.  472.  1  Inst.  338.  b.  Bac.  Abr.  tit.  Leases,  R.  Piatt  v.  Sleap,  Cro.  Jac. 
275.     1  Bulst.  118.     Godb.  2.     1  Inst.  338.  a. 

1  In  regard  to  estates  acquired  by  act  of  the  party,  the  rule,  as  generally  under- 
stood in  the  United  States,  seems  to  be  this,  that  they  merge  or  not,  and  mortgages 
are  extinguished  or  not,  according  to  the  intent  of  the  parti/,  as  collected  either  from 
the  deeds  or  from  the  circumstances  of  the  transaction.  And  where  these  furnish  no 
evidence  of  the  intenf,  it  may  be  inferred  from  his  interest,  which,  in  the  absence  of 
indications  to  the  contrary,  it  may  be  presumed  he  intended  to  consult.  Gibson  v. 
Crehore,  3  Pick.  475  ;  Eaton  v.  Simonds,  14  Pick.  98,  104 ;  Freeman  v.  Paul,  3  Greenl. 
260;  Hunt  v.Hunt,  14  Pick. 374;  Freeman  u.McGaw,  15  Pick. 82;  Richards  r.Ayres,  1 
Watts  &  Serg.  485 ;  Moore  v.  Harrisburg  Bank,  8  Watts,  138  ;  Lockwood  v.  Sturdevant, 
6  Conn.  373.  And  see  Forbes  v.  Moffatt,  18  Ves.  384;  4  Kent,  Comm.  101.  In  either 
case  the  rights  of  creditors  will  be  protected.  Ibid.  See  further  on  this  subject,  post, 
Vol.  VI.  tit.  39,  Merges. 


Title  VIII.     Estate  for  Years.     Ch.  II.  s.  39—45.      273 

It  is  a  general  rule,  that  the  husband  cannot,  in  virtue  of  his 
marital  right,  dispose  of  his  wife's  freehold,  so  as  to  pre- 
clude her  *from  resuming  her  estate  on  his  death.      It     *240 
would  be  absurd,  then,  in  the  law  to  suffer  the  husband  to 
defeat  the  wife  of  her  estate  by  indirect  means,  when  it  denies  to 
him  the  privilege  of  doing  it  by  alienation  in  express  terms."  (a) 

40.  It  was  for  some  time  doubtful,  whether  one  estate  for 
years  would  merge  in  another  estate  in  reversion  of  the  same 
denomination.  The  cases  are  ably  discussed  in  Mr.  Preston's 
work,  wherein  he  considers  the  proposition  established  in  the 
affirmative.  The  point  is  now  settled  accordingly  by  the  follow- 
ing recent  decision,  (b) 

41.  A  mortgage  term  of  1000  years  was  created  in  1720,  and 
another  for  500  years  on  the  same  premises  in  1725.  The  term 
of  1000  years  vested  in  A,  subject  to  the  debt  charged  thereon, 
and  upon  her  death  devolved  upon  her  executors,  who,  in  1780, 
took  an  assignment  of  the  500  years'  term,  with  the  debt  due 
thereon.  In  1785,  the  executors  assigned  both  terms  to  trustees 
on  the  marriage  of  the  legatee,  entitled  to  them  under  A's  will. 
Sir  John  Leach,  V.  C,  held  that  the  1000  years'  term  merged  in 
the  reversionary  term  for  500  years,  (c) 

42.  It  may  be  here  remarked,  that  the  less  estate  must  always 
merge  in  the  greater,  that  is  greater  in  quality ;  and,  with  refer- 
ence to  the  subject  of  the  present  title,  it  must  be  remembered, 
that  the  term  is  not,  for  the  purposes  of  merger,  considered 
greater,  according  to  the  extent  of  its  possible  duration  or  numer- 
ical quantity,  but  from  its  being  the  term  in  reversion;  this  is 
proved  by  the  preceding  case.] 

43.  The  Statute  of  Uses  expressly  saves  the  rights  of  the  feof- 
fees to  uses ;  which  preserves  from  merger  any  terms  for  years 
that  may  be  vested  in  persons  to  whom  the  lands  are  conveyed 
to  uses,  (d) 

44.  A  Court  of  Equity  will,  in  some  cases,  relieve  against  the 
merger  of  a  term,  and  make  it  answer  the  purposes  for  which  it 
was  created. 

45.  A.  portion  was  directed  to  be  raised  out  of  a  term  for 
years,  for  a  daughter.      The  fee  afterwards   descended  on  the 

(a)  Stephens  v.  Britridge,  1  Lev.  30.     Brest.  Conv.  3d  vol.  293,  297. 

(b)  Prest.  Conv.  vol.  3.  182,  207.     Tit.  32.  c.  7. 

(c)  Stephens  v.  Bridges,  6  Mad.  06.  ((0  Vide  infra,  tit.  39.  s/94. 


274       Title  VIII.     Estate  for  Years.     Ch.  II.  s.  45—50. 

daughter,  who,  being  under  age,  devised  the  portion.     The  Court 
relieved  against  the  merger  of  the  term,  and  decreed  the  portion 

to  go  according  to  the  will  of  the  daughter,  (a)  f 
241  *         *  46.  A  person  having  a  term  of  1000  years,  assigned  it 

to  the  owner  of  the  inheritance,  in  trust  for  his  wife  and 
children ;  the  assignee  accepted  the  trust,  and  declared  the  pur- 
poses of  it.  The  Court  of  Chancery  supported  the  trust,  not- 
withstanding the  merger  of  the  term  ;  and  decreed  the  heir  of  the 
lessor  to  make  a  further  assurance  of  the  residue  of  the  term  to  a 
purchaser.  (6) 

47.  If,  however,  a  tenant  for  years  attempts  to  create  a  greater 
interest  than  he  lawfully  can,  whereby  the  estate  in  remainder 
or  reversion  is  divested,  it  will  operate  as  a  forfeiture  of  his 
estate.1  And  Lord  Coke  says,  if  tenant  for  life  or  years,  the 
remainder  or  reversion  in  the  king,  make  a  feoffment  in  fee,  this 
is  a  forfeiture,  and  yet  no  reversion  or  remainder  is  divested  out 
of  the  king.  For  the  reason  of  the  forfeiture  is,  in  respect  to 
the  solemnity  of  the  feoffment  with  livery,  tending  to  the  king's 
disherison,  (c) 

48.  But  where  a  tenant  for  years  makes  a  lease  for  a  longer 
term  than  he  has,  it  is  no  disseisin,  nor  forfeiture ;  because  it  is 
only  a  contract  between  him  and  his  lessee,  which  does  not 
operate  on  the  interests  of  the  lessor,  (d) 

49.  If  a  husband  possessed  of  a  term  for  years,  in  right  of  his 
wife,  forfeits  it,  this  shall  bind  the  wife,  because  he  might  have 
disposed  of  it  at  his  pleasure,  (e) 

50.  An  estate  for  years  is  not  forfeited,  if  the  person  in  remain- 
der or  reversion  is  a  party  to  the  conveyance ;  for  in  that  case 
each  person  transfers  only  what  he  may  lawfully  alien.  (/) 

(a)  Powell  v.  Morgan,  2  Vera,  90.     Thomas  v.  Kemeys,  2  Yern.  348.     Tit.  1.  s.  50. 

(b)  Saunders  v.  Bournford,  Finch,  424.     3  Swan,  603,  60S. 

(c)  1  Inst.  251.  b.     Dyer,  362.  b.     Cro.  Eliz.  323.  (d)  1  Salk.  1ST. 
(e)  1  Roll,  A"b.  S51.                                          (/)  6  Rep.  15.  a. 

[t  Upon  the  subject  of  this  and  the  nine  preceding  sections,  see  title  39,  the  chapter 
on  Merger,  by  the  Editor.] 

1  In  many  of  the  United  States,  it  is  expressly  enacted  that  no  deed  of  a  tenant  for 
life  or  years  shall  pass  any  greater  estate  than  he  might  lawfully  convey.  See  ante, 
tit.  3,  ch.  1,  §  36,  note.  Of  course  no  remainder  or  reversion  can  by  such  deed  be 
divested,  and.  therefore,  no  forfeiture  incurred.  But  a  tenant  for  years  forfeits  his  term 
by  a  refusal  in  pais  to  pay  rent,  by  denying  the  title  of  his  landlord,  and  by  accepting 
an  adverse  title.    Jackson  v.  Vincent,  4  Wend.  633. 


Title  VIII.     Estate  for  Years.     Ch.  II.  s.  51.  275 

51.  With  respect  to  forfeitures  by  matter  of  record,  it  may  be 
laid  down  as  a  general  rule,  that  every  act  by  matter  of  record, 
which  operates  as  a  forfeiture  of  an  estate  for  life,  will  also 
operate  as  a  forfeiture  of  an  estate  for  years,  (a)  1 

(a)  Tit.  3.  c.  1.  s.  37. 

[  !  An  absolute  parol  lease,  made  during  the  term  of  a  written  lease,  by  the  landlord 
to  a  new  tenant,  with  the  consent  of  the  first  lessee,  amounts  to  a  surrender  of  the  first 
lease.  Whitney  v.  Myers,  1  Duer,  (N.  Y.)  266.  An  abandonment  of  the  premises  by 
the  tenant  authorizes  the  landlord  to  enter.  Baker  v.  Pratt,  15  111.  571 ;  Schuisler  v. 
Ames,  16  Ala.  73.  Where  the  condition  of  the  lease  was  that  the  tenant  should  not 
cut  off  wood  and  timber  from  the  premises  except  for  firewood  and  fencing  timber, 
and  the  tenant  did  cut  other  timber,  it  was  held  a  forfeiture,  and  that  it  could  not  be 
avoided  by  the  tenant's  showing  that  all  he  cut  was  not  more  than  enough  for  fire- 
wood and  fencing  timber,  and  that  he  cut  fencing  timber  from  other  land.  Clarke  v. 
Cummings,  5  Barb.  Sup.  Ct.  339.  A  disclaimer  by  parol  of  his  landlord's  title,  does 
not  forfeit  a  written  lease  for  years.  De  Laucey  v.  Ga  Nun,  12  Barb.  Sup.  Ct.  120. 
The  receipt  of  rent  by  landlord  from  the  tenant,  accruing  after  acts  of  forfeiture  known 
to  the  landlord,  is  a  waiver  of  the  forfeiture.  Clarke  v.  Cummings,  5'Barb.  Sup.  Ct. 
339  ;  Camp  v.  Pulver,  lb.  91.] 


276 


TITLE  IX. 

ESTATE    AT    WILL,   AND    AT    SUFFERANCE. 
BOOKS    OF  REFERENCE   UNDER  THIS  TITLE. 

Coke  upon  Littleton,  55.  a. — 57.  b. 

Woodfall's  Law  of  Landlord  and  Tenant.     (Wollaston's  ed.) 

Smythe's  Law  of  Landlord  and  Tenant  in  Ireland. 

Comyn's  Law  of  Landlord  and  Tenant.     (Chilton's  ed.) 

Kent's  Commentaries.     Vol.  IV.  Lect.  56. 

Blackstone's  Commentaries.    Book  II.  ch.  9. 

Flixtoff  on  Real  Property.     Vol.  II.  Book  I.  ch.  3. 

Lomax's  Digest.    Vol.  I.  tit.  8. 

[Taylor's  American  Law  of  Landlord  and  Tenant,  (2d  edition.)] 

CHAP.  I. 

ESTATE   AT   WILL. 

CHAP.  II. 

ESTATE   AT   SUFFERANCE. 


CHAP.  I. 

ESTATE    AT    WILL. 


Sect.  15.  Six  Months'   Notice    to   quit 
necessary. 
16.  Tenancies  from  Year  to  Year. 

23.  Bind  the  Persons  in  Rever- 
sion. 

24.  And  devolve  to  Executors. 
26.  Six  Months'   Notice    to   quit 

necessary. 


Sect.    1.  Description  of. 

3.  May  arise  by  Implication. 

4.  [Or  by  Deed.'] 

6.  Is  at  the  will  of  both  Parties. 

7.  Not  grantable  over. 
9.   This    Tenant   sometimes   en- 
titled to  Emblements. 

11.  Cannot  commit  Waste. 

12.  What  determines  this  Estate. 

Section  1.  "Tenant  at  ivill,"  (says  Littleton,  s.  68,)  "is 
where  lands  or  tenements  are  let  by  one  man  to  another,  to  have 
and  to  hold  to  him  at  the  will  of  the  lessor,  by  force  of  which 
lease  the  lessee  is  in  possession.1    In  this  case,  the  lessee  is  called 

i  The  tenancy  is  not  created  until  the  entry  of  the  lessee.  Pollock  v.  Kittrcll.  2 
Tayl.  153. 


Title  IX.     Estate  at  Will,  Sf-c.     Ch.  I.  s.  1—3.  277 

tenant  at  will,  because  he  hath  no  certain  or  sure  estate ;  for  the 
lessor  may  put  him  out  at  what  time  it  pleaseth  him." 

2.  Littleton  also  says,  that  if  a  man  lets  lands  to  another,  to 
have  and  to  hold  to  him  and  to  his  heirs,  at  the  will  of  the  lessor, 
the  words  to  the  heirs  of  the  lessee  are  void ;  for  if  the  lessee 
dies,  and  the  heir  enters,  the  lessor  shall  have  an  action  of  tres- 
pass against  him.  (a) 

*  3.  An  estate  at  will  may  arise  by  implication,  as  well  * 243 
as  by  express  words.  Thus  if  a  tenant  for  years  holds 
over  his  term,  and  continues  to  pay  his  rent  as  before,  such  pay- 
ment and  acceptance  of  rent  creates  an  estate  at  will.  So,  where 
a  person  makes  a  feoffment,  and  delivers  the  deed  to  the  feoffee, 
without  giving  him  livery  of  seisin,  and  the  feoffee  enters,  he 
becomes  tenant  at  will.  And  in  a  modern  case  it  was  held  that 
where  a  person  entered,  and  enjoyed  lands  under  a  lease  that  was 
void,  paying  rent,  he  was  tenant  at  will,  (b) 

[So,  also,  it  seems  to  be  the  better  opinion  that  a  person  enter- 
ing under  an  agreement  for  a  lease  must  be  considered  a  tenant 
at  will,  but  the  point  is  not  free  from  doubt,  (c) 

And  upon  similar  principles  a  person  entering  under  a  contract 
for  the  purchase  of  an  estate  with  the  consent  of  the  vendor, 
must  be  deemed  a  tenant  at  will,  (d) * 

In  both  the  preceding  cases  the  possession  of  the  tenant  must 
be  referred  either  to  a  legal  or  adverse  title ;  but  as  the  entry  is 
with  the  consent  of  the  person  entitled  to  the  possession,  it  can- 
not be  considered  adverse ;  and  as  the  agreement  confers  no 
legal  title,  the  only  alternative  seems  to  be,  that  the  person  in 
possession  must,  by  construction  of  law,  be  considered  tenant 
at  will.2 

(a)  Litt.  s.  82.  (5)  10  Vin.  Ab.  400.     Lit.  s.  70.    Denn  v.  Fearnside,  1  Wils.  R.  17G. 

(c)  Hegan  v.  Johnson,  2  Taunt.  148.  Dunk  v.  Hunter,  5  Barn.  &  Aid.  322.  Doe  v.  Law- 
der,  1  Stark.  308. 

('/)  Right  v.  Beard,  13  East,  210.  Doe  v.  Jackson,  1  Bar.  &  Cress.  448.  Doe  v.  Saver, 
3  Camp.  8. 

1  [A  bond  from  A  to  convey  to  B  certain  premises,  upon  the  payment  by  B  gf  a  cer- 
tain note  on  demand,  and  interest  quarterly,  and  in  the  mean  time  to  allow  B  possession 
of  the  premises,  does  not  create  a  mere  tenancy  at  will  so  long  as  B  punctually  pays  the 
interest,  and  the  principal  is  not  demanded :  a  trespass  will  lie  by  B  against  one  who 
removes  him,  under  a  deed  from  A,  given  subsequently  to  such  bond.  White  v.  Liv- 
ingston ct  al.,  10  Cush.  259.] 

-  Where  one  is  let  into  the  possession  and  occupancy  of  lands  under  a  verbal  con- 
tract to  purchase,  no  rent  being  reserved ;  if  the  vendee  docs  not  fuliil  the  contract,  he 

vol.  i.  24 


278         Title  IX.     Estate  at   Will,  See.     Ch.  I.  s.  4r—7. 

4.  Where  an  estate  is  in  mortgage,  and  the  mortgage  deed 
contains  the  usual  clause,  that  the  mortgagor  shall  hold  until 
default  in  payment  of  principal  or  interest,  the  mortgagor,  while 
he  continues  in  the  actual  possession  under  this  agreement, 
would,  it  seems,  be  considered  tenant  for  years,  or  from  year  to 
year.  After  default,  if  the  mortgagor  continues  in  actual  pos- 
session, and  there  is  no  new  agreement  between  the  parties,  he 
is,  until  payment  of  interest  or  other  recognition  of  the  tenancy, 
tenant  by  sufferance,  (a) 

If  the  mortgage  deed  does  not  contain  any  clause  that  the 
mortgagor  shall  hold  until  default,  and  the  mortgagor  continues 
in  actual  possession,  he  is  tenant  at  will.]  (b) 

5.  As  the  tenant  at  will  acquires  the  possession  by  the  con- 
sent of  the  owner,  there  is  a.  privity  of  estate  between  them  ; x  but 
no  fealty  is  due.  (c) 

6.  Lord  Coke  says,  every  lease  at  will  must  in  law  be  at  the 
will  of  both  parties ;  therefore  where  a  lease  is  made,  to  have 

and  to  hold  at  the  will  of  the  lessor,  the  law  implies  it  to 
244  *     be  at  *the  will  of  the  lessee  also.     So  it  is  when  the  lease 

is  made  to  have  and  to  hold  at  the  will  of  the  lessee,  this 
must  also  be  at  the  will  of  the  lessor,  (d) 

7.  A  tenant  at  will  has  no  certain  and  indefeasible  estate, 
nothing  that  can  be  granted  by  him  to  a  third  person ;  because 

(a)  Powseley  v.  Blackmail,  Cro.  Jac.  659.  See  sect.  16.  Partridge  v.  Bere,  5  B.  &  Aid. 
605,  n.  (a.)  Hall  v.  Surtees,  lb.  687.  Doe  v.  Maisey,  8  B.  &  C.  767.  Doe  v.  Giles,  5  Bing. 
431.     Ch.  2.  s.  1,  2. 

(b)  Keech  v.  Hall,  Dougl.  22. 

(c)  Lit.  s.  132,  460.     1  Inst.  270.  b.  (d)  1  Inst.  55.  a. 

is  nevertheless  not  a  tenant  from  year  to  year,  nor  entitled  to  notice  to  quit;  nor  is  lie 
a  trespasser,  until  possession  has  been  demanded  of  him,  and  refused.  And  if,  on  the 
other  hand,  the  contract  fails  on  the  ground  <jf  the  vendor  not  being  able  to  make  a 
good  title,  the  purchaser  is  not  liable  in  an  action  for  use  and  occupation.  Carson  v. 
Baker,  4  Dev.  220;  Winterbottom  v.  Ingham,  7  Ad.  &  El.  611,  N.  S. :  10  Jur.  4  S.  C. 
[A  landlord,  by  delay  to  enter  after  the  term  has  expired,  may  allow  the  tenant  to  acquire 
the  rights  of  a  tenant  at  will,  upon  the  presumption  that  he  acquiesced  in  his  continued 
possessiop,  but  the  burden  is  on  the  tenant  to  show  this.  Chesley  v.  Welch,  37  Me. 
(2  Heath)  106.  A  tenancy  cannot  be  implied  from  the  fact  that  a  vendor  remains  in 
the  possession  of  the  premises  after  a  sale,  so  as  to  authorize  an  action  for  use  and 
occupation.  Greenup  v.  Vernor,  16  111.  26;  Dakin  v.  Allen,  8  Cush.  33;  Dolittle  v. 
Eddy,  7  Barb.  Sup.  Ct.  74  ;  Dowd  v.  Gilchrist,  1  Jones's  Law,  (N.  C.)  353  ;  Whitney 
v.  Cochran,  1  Scam.  209 ;  Glascock  v.  Robards,  14  Mis.  350.] 

1  He  is,  therefore,  capable  of  taking  a  fee  simple  by  release,  operating  by  way  of 
enlargement  of  his  estate.    Litt-  §  460;  1  Inst.  270  b.-.  Post,  tit.  32,  ch.  6. 


Title  IX.     Estate  at   Will,  Sfc.    Ch.  I.  s.  7—11.        279 

the  lessor  may  determine  his  will,  and  put  him  out,  whenever  he 
pleases.1  Therefore  if  a  tenant  at  will  assigns  over  his  estate  to 
another,  who  enters  on  the  land,  he  is  a  disseisor,  and  the  land- 
lord may  have  an  action  of  trespass  against  him.  (a)  2 

8.  A  lessee  at  will  made  a  lease  for  years,  and  the  lessor  en- 
tered. Resolved  on  solemn  argument,  —  1.  That  this  was  only  a 
disseisin  at  election,  and  not  prima  facie.  "2.  That  admitting  it 
to  be  a  disseisin,  the  lessee  at  will,  not  the  lessee  for  years,  was 
the  disseisor,  and  had  gained  the  freehold,  (b) 

9.  "Where  an  estate  at  will  is  determined  by  the  lessor,  the 
tenant  is  entitled  to  the  corn  sown,  and  other  emblements? 
Otherwise  where  the  estate  is  determined  by  the  lessee,  (c) 

10.  If  a  person  makes  a  lease  at  will,  and  is  afterwards  out- 
lawed, by  which  the  will  is  determined,  the  king  shall  have  the 
profits ;  yet  the  lessee  at  will  shall  have  the  corn  that  was  sown. 
But  if  a  lessee  at  will  be  outlawed,  the  king  shall  have  the 
emblements,  (d) 

11.  Tenants  at  will  have  no  power  of  committing'  any  kind  of 
voluntary  waste ;  for  if  a  tenant  of  this  kind  cuts  down  timber 
trees,  or  pulls  down  houses,  the  lessor  may  bring  an  action  of 
trespass  against  him.  But  such  tenants  not  being  within  the 
Statute  of  Gloucester,  no  action  of  waste  f  lies  against  them. 

(a)  1  Inst.  57.  a.  (b)  Blunden  v.  Baugli,  Cro.  Car.  302. 

(c)  Lit.  s.  68.    Oland's  case,  5  Rep.  116.  (d)  Idem. 

1  But  if  a  stranger  enter  and  throw  down  the  fences  erected  by  the  tenant  at  will 
for  his  own  convenience,  or  tread  down  the  grass  or  corn,  the  tenant,  and  not  the 
landlord,  shall  have  trespass  against  the  wrongdoer ;  the  injury  not  being  to  the  per- 
manent rights  of  the  landlord.  Little  v.  Palister,  3  Grecnl.  6  ;  Brown  v.  Bates,  Brayt. 
230. 

2  Where  the  tenant  at  will  assented  to  the  extent  of  an  execution  against  him  upon 
the  land,  showing  it  to  the  creditor  as  his  own  property,  without  giving  notice  of  any 
paramount  title,  and  assisting  the  surveyor  in  setting  off  the  land ;  it  was  held,  that 
the  tenancy  at  will  was  thereby  determined,  and  that  the  tenant  and  the  creditor  were 
trespassers.  Campbell  v.  Procter.  6  Greenl.  12.  And  see  Love  v.  Edmonston,  1  Ired. 
152. 

3  [Simpkins  v.  Rogers,  15  111.  398.] 

|t  The  writ  of  waste,  among  many  others,  is  abolished  after  the  1st  day  of  June, 
1835,  by  Stat.  3  &  4  Will.  4,  c.  27,  s.  36,  37,  except  in  cases  provided  for  by  s.  38  — 
that  is,  when  on  the  above  day  any  person,  whose  right  of  action  shall  be  taken  away 
by  descent  cast,  discontinuance,  or  warranty,  might  maintain  such  writ,  &c,  then  such 
writ.  &c.,  may  be  brought  after  the  above  day,  but  only  within  the  period  during  which 
an  entry  might  have  been  made  under  the  act.  if  such  right  of  entry  had  not  been 
taken  away. 

This  exception  should  be  added  to  the  notes  on  pages,  26,  52,  120, 135,  141,  supra.) 


280        Title  IX.     Estate  at  Will,  8fc.    Ch.  I.  s.  11—14. 

And  as  to  permissive  waste,  there  is  no  remedy  against  them, 
for  they  are  not  bound  to  repair  or  sustain  houses,  like  tenants 
for  years.1  (a) 

12.  With  respect  to  the  acts  which  amount  to  a  determination 
of  an  estate  at  will,  on  either  side,  the  first  and  most  obvious 

mode  of  determining  it  by  the  lessor,  is  an  express  cleclar- 
245*    *  ation  that  the  lessee  shall  hold  no  longer ;  which  must 

either  be  made  on  the  land,  or  else  notice  of  it  given  to 
the  lessee,  (b) 

13.  Any  act  of  oivnership,  exercised  by  the  landlord,  which  is 
inconsistent  with  the  nature  of  this  estate,  will  also  operate  as  a 
determination  of  it.  Thus  if  he  enters  on  the  land,  and' cuts 
down  trees  demised,  or  makes  a  feoffment,2  or  a  lease  for  years  to 
commence  immediately,  the  estate  at  will  is  thereby  determined.3 
On  the  other  side,  any  act  of  desertion,  or  which  is  inconsistent 
with  this  estate,  done  by  the  tenant,  will  also  operate  as  a  deter- 
mination of  the  estate.  Thus  if  the  tenant  assigns  over  the  land 
to  another,  or  commits  an  act  of  waste,  his  estate  is  thereby 
determined.4  But  a  verbal  declaration  by  the  lessee  that  he  will 
not  hold  the  lands  any  longer,  does  not  determine  the  estate, 
unless  he  also  waives  the  possession.!  (c) 

14.  Neither  party  can  determine  an  estate  at  will  at  a  time 

(a)  1  Inst.  57.  a.    Tit,  3.  c.  2.   Lit.  s.  71.    Lady  Shrewsbury's  case,  5  Rep.  13.  b. 

(b)  1  Inst.  55.  b.     (Ellis  v.  Paige,  1  Pick.  43.     Bradley  v.  Covel,  4  Cow.  349.) 

(c)  (Keay  v.  Goodwin,  16  Mass.  1.)  1  Inst.  55.  b.  57.  a.  (Jackson  v.  Babcock,  4  Johns. 
418.     Phillips  v.  Covert,  7  Johns.  1.) 

1  This  applies  only  to  tenants  at  will  in  the  strict  sense  of  the  word  ;  and  not  to 
tenants  from  year  to  year,  for  these  arc  within  the  statute.  1  Saund.  323,  b,  note  (7)  ; 
2  Inst.  302  ;  Co.  Lit.  54,  h. 

2  Or.  a  partition,  where  the  lease  was  of  the  estate  in  common.  Rising  v.  Stan- 
nard,  17  Mass.  282.  [So  if  the  lessor  recovers  judgment  for  possession  against  the 
lessee,  this  terminates  the  tenancy  of  a  sub  lessee  who  is  in  by  verbal  permission. 
Hatstat  v.  Packard,  7  Cush.  245.] 

3  [Benedict  v.  Morse,  10  Met.  229  ;  Kelly  v.  Waite,  12  lb.  300  ;  Howard  v.  Merriam, 
5  Cush.  563  ;  Furlong  v.  Leary,  8  Cush.  409.  But  the  tenant  should  have  notice  before 
he  can  be  ejected  by  forcible  entry  and  detainer  process.     Furlong  v.  Leary,  utsupm.] 

i  [Cooper  v.  Adams,  6  Cush.  87.]  So,  if  he  receives  a  conveyance  of  title  from  a 
stranger.  Bennock  v.  Whipple,  3  Fairf.  346.  [But  it  cannot  be  done  even  by  assign- 
ment, without  giving  notice  to  the  landlord.  Pinhorn  v.  Sonster,  20  Eng.  Law  &  Eq.  501.] 

[  t  In  Doe  v.  Price,  9  Bing.  356,  the  Court  of  C.  B.  decided  that  a  letter  to  the  fol- 
lowing effect  from  the  owner  to  the  tenant  at  will,  or  from  the  agent  of  one  to  the 
agent  of  the  other,  is  a  sufficient  determination  of  the  will :  —  "  Unless  you  pay  what 
you  owe  me,  I  shall  take  immediate  measures  to  recover  possession  of  the  property."  ] 


Title  IX.     Estate  at  Will,  8fc.     Ch.  I.  s.  14—16.       281 

which  would  be  prejudicial  to  the  other.  Therefore  if  the  lessee 
determines  his  will  before  the  day  on  which  the  rent  becomes 
due,  he  must,  notwithstanding,  pay  it  up  to  that  time.  And  if 
the  lessor  determines  his  will  before  the  rent  is  due,  he  loses  it. 
But  if  either  party  die  before  the  rent  is  due,  this  act  of  God 
shall  not  be  productive  of  any  injury ;  for  the  lease,  if  it  be  a 
house,  shall  continue  till  the  next  rent  day  ;  and  if  it  be  of  lands, 
commencing  at  Michaelmas,  it  shall  continue  till  the  summer 
profits  are  received  by  the  representatives  of  the  tenant,  (a) 

15.  It  has  been  settled  by  several  modern  cases  that  six  months'1 
notice  to  quit  must  be  given  by  a  landlord  to  his  tenant  at  will, 
or  to  his  personal  representatives,  before  the  end  of  which  time 
an  ejectment  will  not  lie. 

16.  The  courts  of  law  have  of  late  years  leaned  as  much  as 
possible  against  construing  demises,  where  no  certain  term  is 
mentioned,  to  be  estates  at  will ;  but  have  rather  held  them  to 
be  tenancies  from  year  to  year,  as  long  as  both  parties  please  ; 
especially  where  an  annual  rent  is  reserved.1  And  in  a  modern 
case,  Mr.  Justice  Wilmot  said,  that — "  In  the  country,  leases  at 
will,  in  the  strict  legal  notion  of  an  estate  at  will,  being  found 
extremely  inconvenient,   exist  only   notionally,  and  were 

*  succeeded  by  another  species  of  contract  which  was  less  *  246 
inconvenient."  Mr.  Hargrave  has  remarked  on  this  pas- 
sage, that  it  means,  not  that  estates  at  will  may  not  arise  now, 
as  well  as  formerly,  but  only  that  it  is  no  longer  usual  to  create 
such  estates  by  express  words,  and  that  the  judges  incline  strongly 
against  implying  them,  (h)  2 

(a)  1  Inst.  55.  b.  n.  16.     Leighton  v.  Theed,  1  Ld.  Rayim.  707. 

(b)  3  Burr.  R.  1609.     1  Inst.  55.  a.  n.  3. 

1  It  was  formerly  thought  that  a  tenancy  from  year  to  year,  so  long  as  both  parties 
pleased,  was  a  tenancy  for  two  years  at  least,  and  was  not  determinable  at  the  end  of 
the  first  year.  But  it  is  now  settled,  that  such  a  tenancy  is  determinable  at  the  end  of 
any  year,  the  first  as  well  as  any  subsequent  year  ;  unless,  in  the  creation  of  the  tenancy, 
the  parties  used  expressions  showing  that  they  contemplated  a  tenancy  for  two  years  at 
least.  Doe  d.  Clarke  v.  Smaridge,  7  Ad.  &  El.  957,  959,  N.  S.;  9  Jur.  781,  S.  C.  And 
see  Doe  d.  Chadborn  v.  Green,  9  Ad.  &  El.  658.  If,  at  the  end  of  the  first  year,  the 
lessee,  without  countermand  of  the  lessor,  enters  upon  the  second  year,  he  is  bound  for 
that  year,  and  so  on.  Per  Holt,  C.  J.,  in  Dodd  v.  Monger,  Holt,  41G  ;  6  Mod.  2 15,  S.  C. 

2  The  law  of  tenancies  at  will,  and  from  year  to  year,  as  understood  in  the  United 
States,  is  thus  stated  by  Chancellor  Kent:  —  "Estates  at  will,  in  the  strict  sense,  have 
become  almost  extinguished,  under  the  operation  of  judicial  decisions.  Lord  Mans- 
field observed,  — 3  Burr.  1607,  —  that  an  infinite  quantity  of  land  was  holden  in  Eng- 

24* 


282  Title  IX.     Estate  at  Will,  Sfc.     Ch.  I.  s.  17. 

17.  A  tenant  from  year  to  year  having  acquired  the  possession 
by  the  consent  of  the  owner,  as  well  as  tenant  at  will,  there  is  a 
privity  of  estate  between  them.  («) 

(a)  Ante,  s.  5.     Lit.  s.  460. 


land  without  lease.     They  were  all,  therefore,  in  a  technical  sense,  estates  at  will ;  but 
such  estates  are  said  to  exist  only  notionally,  and  where  no  certain  term  is  agreed  on, 
they  are  construed  to  be  tenancies  from  year  to  year,  and  each  party  is  bound  to  give 
reasonable  notice  of  an  intention  to  terminate  the  estate.    The  language  of  the  books 
now  is,  that  a  tenancy  at  will  cannot  arise  without  express  grant  or  contract,  and  that 
all  general  tenancies  are  constructively  tenancies  from  year  to  year.    Preston  on  Ab- 
stracts of  Title,  Vol.  II.  25;  Wilmot,  J.,  3  Burr.  1609.     If  the  tenant  holds  over  by 
consent  given,  either  expressly  or  constructively,  after  the  determination  of  a  lease  for 
years,  it  is  held  to  be  evidence  of  a  new  contract,  without  any  definite  period,  and  is 
construed  to  be  a  tenancy  from  year  to  year.   The  moment  the  tenant  is  suffered  by  the 
landlord  to  enter  on  the  possession  of  a  new  year,  there  is  a  tacit  renovation  -of  the  con- 
tract for  another  year ;  and  half  a  year's  notice  to  quit  must  be  given,  prior  to  the  end 
of  the  term.     Bro.  Abr.  tit.  Lease,  pi.  53;  Layton  v.  Field,  3  Salk.  222;  Jackson  v. 
Salmon,  4  Wendell,  327.     The  tenant  does  not  know  in  what  year  the  lessor  may  de- 
termine the  tenancy,  and  in  that  respect  he  has  an  uncertain  interest,  on  which  the 
doctrine  of  notice  and  of  emblements  is  grounded.     Kingsbury  v.  Collins,  4  Bingham, 
202.     The  ancient  rule  of  the  common  law  required,  in  the  case  of  all  tenancies  from 
year  to  year,  six  months'  notice  on  either  side,  and  ending  at  the  expiration  of  the  year, 
to  determine  the  tenancy ;  and  there  must  be  a  special  agreement,  or  some  particular 
custom,  to  prevent  the  application  of  the  rule.     This  tenancy  from  year  to  year  suc- 
ceeded to  the  old  tenancy  at  will,  and  it  was  created  under  a  contract  for  a  year,  implied 
by  the  Courts.    The  tenancy  cannot  be  determined  except  at  the  end  of  the  year. 
Leighton  v.  Thecd,  1   Ld.  Raym.  707;  Doe  v.  Snowden,  2  Wm.  Blacks.  Bep.  1224; 
Doe  w.  Porter,   3  Term  Rep.  13 ;  Porter  v.  Constable,  3  Wils.  25  ;  Right  v.  Darby, 
1  Term  Rep.  159  ;  Roe  v.  Wilkinson,  cited  from  MSS.  in  Butler's  note  228  to  Co.  Litt 
lib.  3.     The  English  rule  of  six  months'  notice  prevails  in  many  of  the  United  States  ; 
but  there  is  a  variation  in  the  rule,  or  perhaps  no  fixed  established  rule  on  the  subject, 
in  other  parts  of  the  United  States.    Justice  and  good  sense  require  that  the  time  of 
notice  should  vary  with  the  nature  of  the  contract  and  the  character  of  the  estate. 
Though  the  tenant  of  a  house  is  equally  under  the  protection  of  notice  as  the  tenant  of 
a  farm,  yet.  if  lodgings  be  hired,  for  instance,  by  the  month,  the  time  of  notice  must  be 
proportionably  reduced.    Right  v.  Darby,  1  Term  Rep.  159;  Doe  v.  Hazell,  1  Esp. 
N.  P.  Rep.  94.    If  the  tenant  holds  from  month  to  month,  a  month's  notice  to  quit  must 
be  given.     Prindle  v.  Anderson,  19  Wendell,  391.     In  Pennsylvania,  the  common  law 
notice  of  six  months  is  understood  to  be  shortened  to  three  months,  as  well  in  cases 
without,  as  within  the  statute  of  that  State,  passed  in  the  year  1772.     Gibson,  J.,  in 
Logan  y.  Ilerron,  8  Serg.  &  Rawle,  458. 

"The  reservation  of  an  annual  rent  is  the  leading  circumstance  that  tun,:,  leases 
for  uncertain  terms  into  leases  from  year  to  year.  De  Grey,  Ch.  J.,  in  2  Wm. 
Blacks.  1173.  If  the  tenant  be  placed  on  the  land,  without  any  terms  prescribed, 
or  rent  reserved,  and  as  a  mere  occupier,  he  is  strictly  a  tenant  at  will, — Jackson  v. 
Bradt  2  Games'  Rep.  1G9,  —  and  an  actual  tenant  at  will  has  not  any  assignable 
interest,  though  it  is  sufficient  to  admit  of  an  enlargement  by  release.  Litt.  sec. 
460-    Co.  Litt,  270,  b.     On  the  other  hand,  estates  which  are   constructively  ten- 


Title  IX.     Estate  at  Will,  fyc.     Ch.  I.  s.  18.  283 

18.  A  general  parol  demise  at  an  annual  rent,  where  the  bulk 
of  the  farm  was  inclosed,  and  a  small  part  in  open  common  fields, 
was  held  to  be  a  tenancy  from  year  to  year. 


ancies   for   the  term  of   a  year,  or  from  year   to   year   may  be   assigned.     Preston 
on  Abstracts  of  Title,  Vol.  II.  25.     A  strict  tenant  at  will,  in  the  primary  sense  of 
that  tenancy,  has  been  held  not  to  be  entitled  to  notice  to  quit, —Jackson  v.  Bradt, 
2  Caines'  Kep.  168,  — but  the  later  and  more  liberal  rule  seems  to  be,  that  tenants  at 
will  are  regarded  as  holding  from  year  to  year,  so  far  as  to  be  entitled  to  notice  to  quit 
before  they  can  be  evicted  by  process  of  law.     Or  even  without  that  assumption,  if  the 
party  came  into  possession  with  the  consent  of  the  owner,  and  for  an  indefinite  period, 
he  is  entitled  to  notice  to  quit.    Parker  v.  Gonstable,  3  Wils.  Rep.  25  ;  Eight  v.  Beard, 
13  East's  Eep.  209;  Jackson  v.  Bryan,  1   Johns.  Rep.  322;  Jackson  v.  Langhead, 
2  Ibid.  75  ;  Jackson  v.  Wheeler,  6  Ibid.  272;  Phillips  v.  Covert,  7  Ibid.  1,  4 ;  Bradley 
v.  Covell,  4  Cowen's  Eep.  349  ;  Ellis  v.  Paige,  2  Pick.  71.     There  is  no  uniform  rule 
on  the  subject,  for  it  was  held  in  Doe  v.  Barker,  4  Dev.  N.  C.  Eep.  220,  that  where  a 
person  takes  possession  of  land  by  the  license  of  the  owner  for  an  indeterminate  period, 
without  any  rent  reserved,  he  is  not  a  tenant  from  year  to  year,  but  a  remaining  in- 
stance of  the  old  strict  common-law  tenancy  at  will,  and  is  not  entitled  to  notice  to  quit. 
It  is  settled,  however,  that  notice  is  not  requisite  to  a  tenant,  whose  term  is  to  end  at  a 
certain  time ;  for,  in  that  case,  both  parties  are  apprized  of  their  rights  and  duties.     The 
lessor  may  enter  on  the  lessee  when  the  term  expires,  without  further  notice.  Messenger 
v.  Armstrong,  1  Term  Eep.  54  ;  Eight  v.  Darby,  Ibid.  162  ;  Jackson  v.  Bradt,  2  Caines, 
Eep.  160 ;  Jackson  v.  Parkhurst,  5  Ibid.  128  ;  Bedford  v.  McElhetton,  2  Serg.  &  Eawle, 
49-  Ellis  v.  Paige,  1  Pick.  Eep.  43.    Nor  is  a  tenant  who  disclaims  his  landlord's  title 
entitled  to  notice  to  quit.  Woodward  v.  Brown,  13  Peters'  U.  S.  Eep.  1.  Except  for  the 
purpose  of  notice  to  quit,  tenancies  at  will  seem  even  still  to  retain  their  original  character. 
7  Johns.  Eep.  4  ;  Nichols  v.  Williams,  8  Cowen's  Eep.  13."   4  Kent,  Comm.  11 1—114. 
If  there  be  no  tenancy,  or  existing  and  admitted  relation  of  landlord  and  tenant,  the 
doctrine  of  notice  to  qu'*  does  not  aPPty-    Jackson  "■  Dev0>  3  Johns.  417. 

The  English  rule  of  six  months'  notice  has  been  recognized  in  Vermont;  Hanchef 
v.  Whitney,  1  Verm.  E.  311  ;  in  Kentucky;  Hoggins  v.  Becraft,  1  Dana,  E.  30  ;  and 
in  Tennessee;  Trousdale  v.  Darnell,  6  Yerg.  431.  In  Pennsylvania,  it  is  reduced  to 
three  months.  Logan  v.  Herron,  8  S.  &  It.  458,  per  Gibson,  J.  See  4  Kent,  Comm. 
113,  114.  In  some  other  States,  no  precise  rule  seems  to  have  been  adopted.  In 
others,  it  has  been  regulated  by  statutes.  Thus,  in  Delaware,  the  landlord  may  deter- 
mine a  tenancy  at  will  by  three  months'  notice  to  quit.  Del.  Eev.  St.  1829,  p.  226. 
In  Maine,  New  Hampshire,  Massachusetts,  Michigan,  and  Indiana,  three  months'  notice, 
bv  either  party,  may  determine  this  tenancy,  for  any  cause.  And  if  the  rent  is  payable 
oftener  than  quarter  yearly,  then  notice  equal  to  the  interval  between  the  rent-days 
is  sufficient,  in  Maine,  Massachusetts,  Michigan,  Indiana,  [and  Illinois.  Prickett  v. 
Bitter,  1G  111.  96.  But  the  notice  must  not  only  be  as  long  as  the  interval  between  the 
days  of  payment,  but  must  terminate  at  the  expiration  of  such  interval;  and  the  date 
of  the  notice,  in  the  absence  of  other  evidence,  cannot  be  presumed  to  be  one  of  the 
days  on  which  rent  was  payable.  Prescott  v.  Elm,  7  Cush.  346  ;  and  the  notice  must 
state  the  cause  for  which  it  was  given,  and  the  time  when  the  tenant  is  required  to 
quit.  Currier  v.  Barker,  2  Gray,  224 ;  Steward  v.  Harding,  lb.  335.  Without  such 
notice  to  quit,  and  also  after  such  notice  to  quit,  and  before  the  term  for  which  it  was 
given  has  expired,  the  lessee  at  will,  who  has  not  determined  the  estate  by  any  act  of 
his  own,  has  a  lawful  and  exclusive  possession,  not  only  as  against  a  stranger,  but  also 


284  Title  IX.     Estate  at  Will,  Sfc.    Ch.  I.  8.  19. 

19.  An  ejectment  was  brought  to  recover  the  possession  of  a 
farm  of  about  sixty  acres  of  land,  of  which  fifty-one  were  enclosed, 

against  the  lessor  at  will ;    Dickinson  v.  Goodspeed,  8  Cnsh.  119.     Howard  v.  Mcrriam, 
5  lb.  563.]     But  if  the  cause  is  the  non-payment  of  rent,  then  ten  days'  notice  is  suffi- 
cient, in  Indiana;  seven  days'  in  New  Hampshire;  [Currier  v.  Perley,  4  Foster,  (X.  H.) 
219;]  thirty  days'  in  Maine,  [Smith  v.  Rowe,  31  Maine,  1  Red.  212,]  and  fourteen  days' 
in  Michigan.     And  in  Massachusetts,  "  in  all  cases  of  neglect  or  refusal  to  pay  the  rent 
due  according  to  the  terms  of  any  written  lease,  fourteen  days'  notice,  given  in  writing 
by  the  landlord  to  the  tenant,"  is  sufficient  not  only  to  determine  the  lease,  but  also  to 
entitle  the  landlord  to  eject  the  tenant  by  the  summary  process  of  forcible  entry  and 
detainer.     [See  also,  Acts  1847,  ch.  257,  §    1;  1856,   ch.  85.     A  notice  requiring  the 
tenant  "  being  in  arrears  of  rent"  to  deliver  up  the  premises  "forthwith  "  is  insufficient. 
Oakes  v.  Munroe,  S  Cash.  282.     The  notice  need  not  be  to  quit  at  the  expiration  of 
any  term  or  interval,  at  which  the  rent  becomes  due,  but  should  state  a  day  or  time  to 
quit  at  or  after  the  expiration  of  the  required  time  of  notice,  by  definitely  naming  the 
da)*,  or  denoting  such  time  with  reasonable  exactness  and  certainty.     Currier  v.  Bar- 
ker, 2  Gray,  228.]     In  New  York,  tenancies  at  will  may  be  determined  by  the  landlord 
by  one  month's  notice,  for  any  cause;  in  Connecticut,  by  thirty  days'  notice;  and  in 
South  Carolina,  by  ten  days'  notice,  if  the  lease  be  in  writing.     In  Florida,  if  the  cause 
be  non-payment  of  rent,  three  days'  notice  is  sufficient.     See  LL.  Maine,  1840,  ch.  95, 
§  19  ;  LL.  New  Hamp.  1842,  ch.  209,  §  1—5;  LL.  Mass.  1836,  ch.  60,  §  26;  1847,  ch. 
267-  LL.  Mich.   1S37,  p.  265;  LL.  Indiana,  1843,  ch.  28,  §  142,  143;  LL.  N.York, 
Vol.  II.  p.  30,  §  7,  3d  ed. ;  LL.  Connecticut,  1S38,  tit.  57,  ch.  60 ;  LL.  South  Car.  Vol. 
V.  p.  676,2  Brev.  Dig.  p.  16;  Thompson's  Dig.  LL.  Florida,  p.  398.      [Howell  v. 
Howell,  7  Ired.  Law  (N.  C.)  496  ;  Phelps  v.  Long,  9  lb.  226.     A  tenancy  from  year  to 
year  of  a  farm  used  for  agricultural  purposes,  looks  to  the  end  of  the  calendar  year  for 
its  termination,  and  if  the  landlord  would  determine  it,  he  must,  during  the  current 
year,  give  notice  of  his  intention  to  do  so  at  the  end  of  the  year.     Floyd  v.  Floyd,  4 
Rich.  23.     A  notice  demanding  possession  and  stating  that  if  possession  is  not  given 
by  a  certain  day,  rent  at  a  given  rate  will  be  claimed,  is  not  sufficient.     Ayres  v.  Dra- 
per. 11  Mis.  548.     Sufficient  notice  to  quit  was  given  the  tenant.     At  the  expiration 
of  the  notice,  at  the  request  of  the  tenant,  and  for  his  convenience,  the  landlord  per- 
mitted the  tenant  to  remain  a  short  time.     Held  not  to  be  a  waiver  of  the  notice  and 
renewal  of  the  tenancy.    Babcock  v.  Albee,  13  Met.  273.     But  when  the  lessor,  after 
notice  to  quit,  accepts  rent  from  the  lessee  for  a  time  subsequent  to  the  expiration  of 
the  notice,  he  waives  the  notice  and  continues  the  tenancy.     Collins  v.  Carty,  6  Cush. 
415.     Where  notice  to  quit  is  given  "for  non-payment  of  rent"  the  landlord  is  limited 
to   that  ground  of  recovery.     Tuttle  v.  Bean,  13  Met.  275.     Where  a  tenancy  at  will 
under  a  parol  lease  dependent  on  a  condition,  (the  condition  was  that  the  premises 
should  be  kept  open  as  a  barber's  shop,)  is  determined  by  a  breach  thereof,  neither  of 
the  parties  is  entitled  to  notice  under  the  statute  permitting  a  tenancy  at  will  to  be 
determined  by  giving  three  months'  notice  ;  and  if  the  tenant  holds  over,  he  is  a  tenant 
at  sufferance.     Creech  v.  Crockett,  5  Cush.  133.     The  provisions  of  the  statute  do  not 
apply,  where  the  tenancy  is  terminated  according  to  the  principles  of  the  common  law 
by  the  consent  of  both  parties.     Cooper  v.  Adams,  6  Cush.  87.     The  owner  of  land 
leased  it  by  parol  for  a  year  in  consideration  that  the  lessee  should  take  care  of  certain 
trees  thereon.     The  lessee  did  not  take  such  care.     Held  that  the  lessor  could  not  ter- 
minate the  tenancy  without  notice  to  quit.     Gleason  v.  Gleason,  8  Cush.  32.     A  lessee 
under  a  parol  agreement  to  pay  rent  quarterly  in  advance,  is  liable,  on  his  failure  to  do 
so.  to  the  landlord  and  tenant  process,  without  notice  to  quit.     Elliott  v.  Stone,  1  Gray, 
571.] 


Title  IX.     Estate  at  Will,  Sfc.    Ch.  I.  s.  19—21.      285 

and  the  rest  lay  in  open  fields.  The  taking  was  from  Old  Lady- 
day,  1767,  without  any  fixed  term,  at  <£40  a  year  rent,  payable 
at  Michaelmas  and  Ladyday.  It  was  proved  that  a  custom  pre- 
vailed, where  a  tenant  took  a  farm  in  that  township,  of  which 
part  consisted  of  open  common  field,  for  an  uncertain  term,  that 
it  should  be  considered  as  a  holding  from  three  years  to  three 
years.  Lord  Chief  Justice  De  Grey  said,  that  all  leases  for 
uncertain  terms  were,  prima  facie,  leases  at  will  ;  that  the  reser- 
vation of  an  annual  rent  turned  them  into  leases  from  year  to 
year.  It  was  possible  that  circumstances  might  make  it  a  lease 
for  a  longer  term,  as  when  the  crop  did  not  come  to  perfection  in 
less  than  two  years.  And  he  would  not  say  that  the  nature  of 
the  ground  or  the  course  of  husbandry,  might  not  deserve  to  be 
considered,  when  such  a  custom  came  nakedly  before  the  Court. 
As  a  custom,  the  claim  could  not  be  supported ;  therefore  it  was 
a  lease  from  year  to  year,  (a) 

20.  Where  a  tenant  for  life  granted  a  lease  for  years,  which 
was  void  against  the  remainder-man,  and  the  latter,  before  he 
elected  to  avoid  it,  received  rent  from  the  tenant ;  it  was  held  to 
be  a  tenancy  from  year  to  year,  (b) 

21.  Where  an  agreement  for  a  longer  term  than  three  years 
is  made  by  parol,  which  is  void  as  to  the  duration  of  the  term, 
by  the  Statute  of  Frauds  ;  there  is  a  tenancy  from  year  to  year, 
regulated  in  every  other  respect  by  the  agreement,  (c) ' 

(a)  Roe  v.  Rees,  2  Blackst.  1171.  (b)  Doe  r.  Weller,  7  Term  R.  478. 

(c)  Doe  v.  Bell,  5  Term  R.  471.     Tit,  32.  c.  3.      ' 

In  the  State  of  Indiana,  it  is  provided  by  statute,  that  estates  not  expressly  declared 
to  be  estates  at  will,  shall  be  deemed  tenancies  from  year  to  year.  And  provisions 
substantially  the  same  are  found  in  the  codes  of  Delaware  and  South  Carolina.  But  in 
New  Hampshire,  this  rule  is  reversed,  and  all  tenancies  are  deemed  tenancies  at  will, 
unless  it  be  otherwise  proved.    Ibid. 

In  Massachusetts,  it  has  been  doubted  whether,  under  the  statutes  of  that  State,  prior 
to  the  revised  code  of  1836,  a  tenant  at  will  was  entitled  to  six  months'  notice  to  quit ; 
but  it  was  conceded,  upon  very  full  and  elaborate  consideration,  that  he  was  at  least 
entitled,  of  common  justice,  to  reasonable  time  to  remove  from  the  premises  ;  and  that 
what  constituted  reasonable  time,  was  a  question  for  the  Court  to  determine,  under  the 
circumstances  of  the  case.  Eising  v.  Stannard,  17  Mass.  287  ;  Ellis  v.  Paige,  1  Pick. 
43,  with  the  learned  opinion  of  Putnam,  J.,  in  the  same  case,  in  2  Pick.  71,  note; 
Coffin  v.  Lunt,  2  Pick.  70  ;  Keay  v.  Goodwin.  10  Mass.  1. 

1  Wherever  a  tenant  holds  over,  and  there  is  no  evidence  of  any  new  and  different 
stipulation,  the  law  will  imply  the  continuance  of  all  those  terms  in  the  original  lease, 
which  arc  applicable  to  his  situation.  De  Young  v.  Buchanan,  10  G.  &  Johns.  149; 
Phillips  v.  Monges,  4  Whart.  226  ;  Doe  v.  Geekic,  5  Ad.  &  El.  841,  N.  S.     Upon  the 


286      Title  IX.     Estate  at  Will,  Sfc.     Ch.  I.  s.  22—25. 

247  *  *  22.  In  a  subsequent  case,  it  appeared  in  evidence  that 
the  defendant  had  held  the  premises  for  two  or  three 
years,  under  a  parol  demise  for  twenty-one  years ;  this  being 
void  by  the  Statute  of  Frauds,  it  was  contended  at  the  trial  that 
the  holding  should  have  been  stated  according  to  the  legal  opera- 
tion of  it,  as  a  tenancy  at  will.  Mr.  Justice  Rooke,  considering  it 
as  a  tenancy  from  year  to  year,  overruled  the  objection.  Upon 
a  motion  to  set  aside  the  verdict,  on  the  ground  of  a  misdirection, 
Lord  Kenyon  said  the  direction  was  right ;  for  such  a  holding 
now  operated  as  a  tenancy  from  year  to  year.  The  meaning  of 
the  Statute  of  Frauds  was,  that  such  an  agreement  should  not 
operate  as  a  term.  But  what  was  then  considered  as  a  tenancy 
at  will,  had  since  been  properly  construed  to  enure  as  a  tenancy 
from  year  to  year,  (a) 

23.  Where  a  tenancy  from  year  to  year  has  once  commenced^ 
it  continues  against  any  person  to  whom  the  lessor  afterwards 
grants  the  reversion.  And  Mr.  Justice  Buller  has  said, — "  It 
would  be  unjust  to  a  tenant  to  say  he  should  be  turned  out  by 
the  assignee  of  a  reversion,  or  by  any  person  claiming  under  his 
lessor,  when  he  could  not  be  turned  out  by  the  lessor  himself. 
On  the  other  hand,  it  is  no  injustice,  it  is  no  hardship  on  the 
assignee,  to  say,  he  must  comply  with  the  same  rules  and  condi- 
tions, as  the  person,  of  whom  he  bought,  has  subjected  himself 
to."  And  in  a  subsequent  case  it  was  held,  that  a  tenancy  from 
year  to  year  would  continue  against  an  infant,  (b) 

24.  Tenancies  from  year  to  year  do  not  determine  by  the  death 
of  the  tenant,  but  devolve  to  his  executors  or  administrators.  ■  ■ 

25.  A  person  having  an  estate  from  year  to  year  died  intestate  ; 
the  question  was,  what  interest  vested  in  his  administrator. 

Lord  Kenyon  said, — Whatever  chattel  the  intestate  had  must 
vest  in  the  administrator,  as  his  personal  representative.  Then 
it  was  supposed  that  some  inconveniences  might  result  from  such 
a  determination,  but  he  saw  none ;    and  many  inconveniences 

(a)  Clayton  v.  Blakey,  8  Term  R.  3. 

(6)  Birch  v.  Wright,  1  Term  R.  378.     Maddon  o.  White,  2  Term  R.  159. 


expiration  of  the  lease,  the  landlord  has  his  election,  to  treat  him  either  as  a  trespasser, 
or  as  a  tenant  holding  over.  Conway  v.  Starkweather,  1  Denio,  K.  113.  [Baker  v. 
Boot,  4  McLean,  572;  Kendall  v.  Moore,  30  Maine,  (17  Shep.)  327  ;  Strong  v.  Crosby, 
21  Conn.  398  ;  Ames  v.  Schuesler,  19  Ala.  COO;  Jackson  v.  Patterson,  4  Harring,  534; 
Walker  v.  Ellis,  12  111.  476  ;  Prickett  v  Putter,  16  lb.  96.] 


Title  IX.     Estate  at  Will,  fyc.     Ch.  I.  s.  25—27.      287 

might  attend  a  different  decision.  The  tenancy  from  year  to 
year  succeeded  to  the  old  tenancy  at  will,  which  was  attended 
with  many  inconveniences.  In  order  to  obviate  them,  the  Courts 
very  early  raised  an  implied  contract  for  a  year  ; '  and  added  that 
the  tenant  could  not  be  removed  at  the  end  of  the  year,  without 
receiving  six  months'  previous  notice.  All  the  incon- 
veniences *  which  arose  between  the  original  parties  them-  *  248 
selves,  and  against  which  the  wisdom  of  the  law  had 
endeavored  to  provide,  by  raising  the  implied  contract,  existed 
equally  in  the  case  of  their  personal  representatives,  (a) 

26.  It  appears  from  the  preceding  case,  and  many  others,  that 
a  tenant  from  year  to  year  is  entitled  to  six  months''  notice  to  quit, 
ending  at  the  expiration  of  the  year ;  and  that  he  must  also  give 
the  landlord  the  same  notice. 

27.  [A  tenant  at  will  is  capable  of  taking  a  release  of  the  inheri- 
tance after  he  has  entered  upon  the  premises,  for  he  has  then  an 
estate  ;  but  it  is  otherwise  with  a  tenant  at  sufferance,  who  has 
a  possession,  but  no  privity.  The  estate  of  a  tenant  at  will  can- 
not be  the  foundation  of  a  remainder.]  (b) 

(a)  Doe  v.  Porter,  3  Term  R.  13.     15  Ves.  241.     Rex  v.  Stone,  6  Term  R.  295. 

(b)  Lit.  s.  460.     (1  Inst.  270.  b.)     8  Co.  Rep,  75.  a. 


1  See  Doe  d.  Clarke  v.  Smaridge,  7  Ad.  &  El.  957,  N.  S.  ;  Ante,  §  16,  n. 


288 


CHAP.  II. 


ESTATE    AT    SUFFERANCE. 


Sect.     1.  Description  of. 

5.  This   Tenant  to  pay  double 

Value  after  Notice. 

6.  Who  may  give  Notice. 

7.  At  what  Time. 


Sect.     9.  Acceptance  of  single  Rent  no 
Bar  to  Recovery. 
11.   Tenants  giving  Notice  to  quit, 
and  holding  over,  to  pay 
double  Rent. 


Section  1.  "  Tenant  at  sufferance"  (says  Lord  Coke,)  "  is  he 
that  at  first  came  in  by  lawful  demise,  and  after  his  estate  ended 
continueth  in  possession  ;  and  wrongfully  holdeth  over."  1    Thus, 


1  This  species  of  estate,  Chancellor  Kent  remarks,  is  too  hazardous  to  be  frequent ; 
and  it  is  not  likely  to  occur  since  the  Statutes  of  4  Geo.  2,  c.  28,  and  11  Geo.  2,  c.  19, 
imposing  double  rent  upon  the  tenant  holding  over  after  notice  to  quit,  so  long  as  he 
remains  upon  the  premises.  The  provisions  of  these  statutes  have  been  substantially 
reenacted  in  New  York  and  South  Carolina,  and  in  some  other  States,  though  they  have 
not  been  generally  adopted  in  this  country.  The  landlord,  however,  may  also  recover 
the  premises  by  an  action  of  ejectment.  But  whether,  independent  of  any  statute  pro- 
vision, and  with  gentle  and  barely  adequate  force,  he  might  enter  upon  the  tenant  hold- 
ing over,  and  remove  him  and  his  goods,  without  any  agreement  to  that  effect  in  the 
lease,  may  be  doubted.  It  has  been  held  that  the  sheriff  might  so  enter  to  levy  a  fieri 
facias  upon  the  unexpired  interest  of  the  tenant  in  the  term,  using  only  such  gentle 
force  as  might  be  requisite  for  the  purpose  ;  and  that  the  tenant  had  no  remedy  against 
him  for  so  doing,  nor  against  the  purchaser  of  the  term  at  the  sheriff 's  sale,  for  the  like 
entry.  Taylor  v.  Cole,  3  T.  K,  292  ;  1  H.  Bl.  555,  S.  C.  But  as  between  landlord  and 
tenant,  it  seems  that  to  justify  the  forcible  expulsion  of  the  tenant,  the  landlord  must 
first  have  entered  peaceably  and  without  force,  and  thereby  gained  the  peaceable  pos- 
session. Taunton  v.  Costar,  7  T.  E.  431 ;  Argent  v.  Durrant,  8  T.  R.  403  ;  Newton 
v.  Harland,  1  M.  &  Gr.  644.  If  the  tenant  has  personally  left  the  premises,  the  land- 
lord may  break  open  the  doors  to  regain  possession,  though  the  goods  of  the  tenant  are 
still  in  the  house;  for  it  is  no  longer  his  house.  Turner  v.  Meymott,  1  Bing.  158. 
And  see  Dorrell  v.  Johnson,  17  Pick.  263,  266.  In  some  of  the  United  States  it  has 
been  held,  in  accordance  with  the  above  English  decisions,  that  the  landlord  cannot 
justify  an  entry  with  personal  violence,  and  that  though  the  tenant  by  sufferance  can- 
not maintain  trespass  quare  clausumf regit  against  him,  yet  he  may  have  an  action  for 
any  trespass  to  his  person,  committed  in  making  the  forcible  entry  upon  him.  Samp- 
son v.  Henry,  13  Pick.  36 ;  1 1  lb.  379.  In  New  York,  it  has  been  decided,  that  in  the  case 
of  a  tenant  holding  over,  and  in  all  other  cases  where  one  has  a  title  to  enter,  the  owner 
may  regain  the  lawful  possession  by  force,  even  though  he  may  be  liable  for  the  force  used, 


Title  IX.     Estate  at  Will,  Sfc.    Ch.  II.  s.  1—4.        289 

where  a  tenant  powr  aider  vie,  continues  in  possession  after  the 
death  of  cestui  que  vie,  or  a  tenant  for  years  holds  over  his  term, 
they  become  tenants  at  sufferance.  So  where  a  person  makes  a 
lease  at  will,  and  dies,  the  estate  is  thereby  determined  ;  and  if 
the  lessee  continues  in  possession,  he  is  tenant  at  sufferance,  (a)1 

2.  Where  a  man  comes  to  a  particular  estate  by  the  act  of  the 
parti/;  there  if  he  holds  over,  he  is  tenant  at  sufferance.  But 
where  he  comes  to  the  particular  estate,  by  act  in  law,  as  if  a 
guardian,  after  the  full  age  of  the  heir,  continues  in  possession, 
he  is  not  a  tenant  at  sufferance,  but  an  abator,  (b)2 

3.  No  person  can  be  a  tenant  at  sufferance  against  the  king, 
for  no  laches  can  be  imputed  to  his  majesty  in  not  entering ; 
therefore,  if  the  king's  tenant  holds  over,  he  will  be  considered 
as  an  intruder,  (c) 

4.  There  is  no  privity  of  estate  between  a  tenant  at  sufferance, 
and  the  owner  of  the  land ;  for  this  tenant  only  holds  by  the 

(a)  1  Inst.  57.  b.  {b)  1  last,  57.  b.  2—134.     Vid.  sup.  p.  243.  s.  4. 

(c)  1  Inst.  57.  b.    2  Leon.  143. 

under  the  statute  against  forcible  entry  and  detainer.  Wild  v.  Cantillon,  1  Johns.  Cas. 
123;  Hyatt  v.  Wood,  4  Johns.  150;  Ives  v.  Ives,  13  Johns.  235;  Jackson  v.  Farmer,  9 
Wend.  201 .  And  in  England,  though  the  landlord  may  not  forcibly  enter  upon  a  ten- 
ant, in  any  ease  ;  yet,  where  the  lease  contained  a  clause  that  in  default  of  performance 
of  covenants  on  the  part  of  the  tenant,  it  should  be  lawful  for  the  landlord  or  his  agent 
to  enter  upon  the  premises  and  take  possession,  as  effectually  as  a  sheriff  might  do 
under  a  writ  of  habere  facias,  and  that  in  case  of  any  action  being  brought  for  so  doing, 
the  defendant  might  plead  leave  and  license  therefor,  of  which  the  agreement  should  be 
conclusive  evidence ;  and  an  action  of  trespass  was  brought  for  such  entry  and  forcible 
expulsion,  the  declaration  also  alleging  an  assault  and  battery,  to  which,  among  other 
pleas,  leave  and  license  was  pleaded  ;  —  it  was  held  that  the  agreement  was  a  conclu- 
sive answer  to  the  declaration,  under  such  plea,  and  that  if  the  plaintiff  intended  to 
rely  upon  the  assault  and  battery  as  distinct  from  the  cutry  and  expulsion,  he  should 
have  newly  assigned  the  excess.  Kavanagh  v.  Gudge,  8  Jur.  362 ;  7  Man.  &  Gr.  316, 
S.  C. 

1  If  mortgaged  premises  are  sold  pursuant  to  a  power  contained  in  the  mortgage,  the 
mortgagor,  if  he  remains  in  possession,  is  a  tenant  at  sufferance.  Kinsley  v.  Ames, 
2  Met.  29.  So.  if  the  lessee  for  years,  under  a  parol  lease,  agrees  to  quit  within  the 
term,  if  the  premises  should  be  sold,  and  they  are  sold  accordingly,  and  he  continues 
afterwards  in  possession,  he  is  a  tenant  at  sufferance.  Hollis  v.  Pool,  3  Met.  350. 
[Where  a  tenancy  at  will  under  a  parol  lease,  dependent  on  a  condition,  is  terminated 
by  a  breach  thereof,  neither  of  the  parties  is  entitled  to  notice  to  terminate  the  tenancy, 
and  if  the  tenant  holds  over,  he  is  a  tenant  at  sufferance.  Creech  v.  Crockett,  5  Cush. 
133.  A  tenant  at  sufferance  is  not  entitled  to  notice  to  quit.  Kelly  v.  Wake,  12  Met. 
300.] 

-  Or,  a  disseisor,  by  election.    Blunden  v.  Baugh,  Cro.  Car.  302  ;  1  Inst.  57,  b.  note 
[383] ;  Dyer,  62,  a.  pi.  34. 

VOL.  I.  25 


290         Title  IX.     Estate  at.Wi/l,  Sfc.     Ch.  II.  s.  4—5. 

laches  of  the  owner,  [so  that  there  cannot  be  a  release 
250*  from  the  *  latter  to  the  former,  which  will  operate  by- 
enlargement  of  his  estate.] 
5.  Tenants  at  sufferance  were  not  liable,  by  the  common  law, 
to  pay  any  rent,  because  it  was  the  folly  of  the  owners  to  suffer 
them  to  continue  in  possession  after  the  determination  of  the 
preceding  estate.1  f 


[  *  Whether  tenants  at  sufferance  in  Massachusetts  are  liable  to  pay  rent,  see  Delano 
v.  Montague,  4  Cush.  42.] 

[  t  But  now,  by  the  Statute  4  Geo.  2,  c.  28,  s.  1,  it  is  enacted,  that  where  any  tenant 
holds  over,  after  demand  made,  and  notice  in  writing  given  for  delivering  the  posses- 
sion, such  persons  so  holding  over  shall  pay  double  the  yearly  value  of  the  lands  so 
detained,  for  so  long  time  as  the  same  are  detained  ;  to  be  recovered  by  action  of  debt ; 
against  the  recovering  of  which  penalty  there  shall  be  no  relief  in  equity. 

The  landlord,  by  himself,  or  by  his  agent  lawfully  authorized,  is  the  proper  person  to 
give  notice.  But  it  was  held,  in  a  modern  case,  that  a  receiver,  appointed  by  the  Court 
of  Chancery,  is  an  agent  for  the  landlord,  authorized  by  this  act  to  give  a  tenant  notice 
to  quit  the  premises  ;  and  that  a  notice  in  writing  to  quit  is  of  itself  a  sufficient  demand. 
Wilkinson  v.  Collcy,  5  Burr.  2694. 

A  notice  to  quit  under  this  statute  may  be  given  previous  to  the  expiration  of  the 
lease  under  which  the  tenant  holds  the  lands. 

Lands  were  leased  from  the  10th  October,  1763,  for  eleven  years.  The  person  en- 
titled to  the  reversion  gave  a  written  notice  to  the  tenant  on  the  30th  September,  1773, 
and  again  repeated  the  like  notice  on  the  7th  October,  1774,  or  to  pay  double  value. 
On  the  10th  October,  the  reversioner  went  on  the  premises,  and  demanded  possession, 
which  was  refused.  In  an  action  for  double  value,  the  jury  gave  a  verdict  for  the  plain- 
tiff. A  motion  was  made  for  a  new  trial, — Because,  1.  By  the  Statute  4  Geo.  2, 
notice  to  quit  must  be  given  after,  and  not  before,  the  expiration  of  the  term.  2.  The 
lease  did  not  expire  till  midnight,  and  possession  was  demanded  in  the  preceding  after- 
noon. Lord  Chief  Justice  De  Grey  was  of  opinion,  that  the  notice  to  quit  might  be 
previous  to  the  expiration  of  the  term.  It  prevented  surprise,  and  was  most  for  the 
benefit  of  both  landlord  and  tenant.  Mr.  Justice  Blackstone  said,  that  a  notice  or 
requisition  to  the  tenant  to  quit  at  the  end  of  his  term,  implied  that  it  must  be  previous. 
It  would  be  absurd,  because  impossible  to  be  complied  with,  to  require  after  the 
251*  expiration  of  the  term  *  that  the  tenant  should  quit  at  the  expiration.  The 
motion  was  refused.     Cutting  v.  Derby,  2  Black.  R.  1075. 

Although  a  landlord,  after  bringing  an  ejectment,  and  after  the  time  laid  in  the 
demise,  should,  agree  to  accept  the  single,  instead  of  the  double  rent,  to  which,  by  the 
statute,  he  is  entitled,  yet  he  will  not  be  thereby  precluded  from  recovering  in  the  eject- 
ment. It  was  held,  in  a  modern  case,  that  where  a  demise  is  for  a  certain  time,  no 
notice  to  quit  is  necessary  at  or  before  the  end  of  the  term,  to  put  an  end  to  the  tenancy. 
That  a  demand  of  possession,  and  notiee  in  writing,  &c,  are  necessary  to  entitle  the 
landlord  to  double  rent  or  value.  That  such  demand  may  be  made  for  that  purpose 
six  weeks  afterwards,  if  the  landlord  have  done  no  act  in  the  mean  time  to  acknowledge 
the  continuation  of  the  tenancy ;  and  he  will  thereupon  be  entitled  to  double  value, 
as  from  the  time  of  such  demand,  if  the  tenant  holds  over.  Cobb  v.  Stokes,  8  East, 
358. 


Title  IX.     Estate  at  Will,  Sfc.     Ch.  II.  s.  5.  291 

By  the  Stat.  11  Geo.  2,  c.  19,  s.  18,  reciting  that  great  inconvenience  had  happened 
to  landlords,  whose  tenants  had  power  to  determine  their  leases,  by  their  civinir  notice 
to  quit,  and  yet  refusing  to  deliver  up  the  possession,  when  the  landlord  hath  agreed 
with  another  tenant  for  the  same ;  it  is  enacted, — "  That  in  case  any  tenant  or  tenants 
shall  give  notice  of  his,  her,  or  their  intention  to  quit  the  premises  by  him,  her,  or  them 
holden.  at  a  time  mentioned  in  such  notice,  and  shall  not  accordingly  deliver  up  the 
possession  thereof  at  the  time  in  such  notice  contained ;  that  then  the  said  tenant  or 
tenants,  his,  her,  or  their  executors  or  administrators,  shall  from  thenceforward  pay  to 
the  landlord  or  landlords,  lessor  or  lessors,  double  the  rent  or  sum  which  he,  she,  or 
they  should  otherwise  have  paid."  It  was  resolved,  in  a  modern  case,  that  this  act  is 
not  confined  to  those  tenants  who  have  a  clause  in  their  leases  enabling  them  to  quit  at 
the  end  of  seven,  eleven,  or  fourteen  years,  upon  giving  notice ;  but  also  to  parol  leases 
for  a  year.  And  that  a  parol  DOtice  was  sufficient,  because  the  statute  did  not  require 
a  written  one.     Timmins  v.  Rowlinson,  1  Black.  R.  533;  3  Bun-.  1603. 

By  the  Stat.  1  Geo.  4,  c.  87,  various  provisions  are  made  for  enabling  landlords 
more  speedily  to  recover  possession  of  lands  and  tenements  unlawfully  held  over  by 
tenants. 

*In  Doe  v.  Roe,  it  was  decided  that  a  tenancy  by  virtue  of  an  agreement  in   *252 
writing,  for  three  months  certain,  is  a  tenancy  <:for  a  term,''  within  the  meaning 
of  the  above  acts.     But  where  a  tenant  holds  from  year  to  year,  but  without  a  lease  or 
agreement  in  writing,  it  is  not  a  case  within  the  first  section  of  the  act.     5  Bar.  &  Aid. 
766,  770.] 


292 


TITLE   X. 

COPYHOLD.1 


1  Copyhold  Estates  being  unknown  in  America,  this  Title  is  omitted. 


293 


TITLE  XI. 

USE. 
BOOKS   OF   REFERENCE   UNDER   THIS    TITLE. 

Lord  Bacon's  Reading  upon  the  Statute  of  Uses.     (By  Rowe.) 

G.  Spence,  on  the  Equitable  Jurisdiction  of  the  Court  of  Chancery.  Vol.  I. 
Peart  II.  Book  III.  ch.  2—6. 

R.  Preston,  on  Estates.    Vol.  I.  p.  142 — 184. 

TV".  F.  Cornish.    Essay  on  Uses. 

Ch.  Baron  Gilbert,  on  the  Law  of  Uses  and  Trusts.     (Sugden's  ed.) 

F.  W.  Sanders.     Essay  on  Uses  and  Trusts.     (5th  ed.) 

J.  Wilson.    Treatise  on  Springing  Uses. 

Blackstone's  Commentaries.     Book  II.  ch.  20. 

Kent's  Commentaries.    Vol.  IV.  Lect.  61. 

Lomax's  Digest.     Vol.  I.  tit.  9. 

Charles  Butler.    Note  to  Coke  upon  Littleton,  271.  b.  note  231. 

Flintoff  on  Real  Property.     Vol.  II.  Book  I.  ch.  19. 

The  source  of  Roman  Law  on  this  subject  is  in  the  Institutes  of  Justinian, 
Lib.  II.  tit.  23,  with  the  various  commentaries  thereon.  See  also  Van 
Der  Linden's  Institutes  of  the  Laws  of  Holland,  Book  I.  §  8. 

CHAP.  I. 

ORIGIN   OF   USES. 

CHAP.  II. 

NATURE  OF  A  USE  BEFORE  THE  STATUTE  27  HEN.  VIII. 

CHAP.  III. 

STATUTE   27   HEN.    VIII.    OF   USES. 

CHAP.  IV. 

MODERN   DOCTRINE   OF   USES. 


CHAP.  I. 

ORIGIN   OF   USES. 


Sect.     1.  Origin  of  Uses.                        |  Sect.  11.  Jurisdiction  of  the  Chancel- 

5.  Derived  from  the  Fidei  Com-  |  lors  over  Uses. 

niissum.  13.  Introduction  of  the   Writ  of 

'  Subpoena. 

Section  1.  Having  treated  of  legal  and  customary  estates,  we 
now  come  to  discuss  the  nature  and  properties  of  what  are  called 
Equitable  Estates. 

25* 


294  Title  XL     Use.     Ch.  I.   s.  1—6. 

The  original  simplicity  of  the  common  law  admitted  of  no  im- 
mediate estate  in  lands,  which  was  not  clothed  with  the  legal 
seisin  and  possession.  But  in  process  of  time  a  right  to  the 
rents  and  profits  of  lands,  whereof  another  person  had  the  legal 
seisin  and  possession,  was  introduced ;  and  though  not  recog- 
nized for  a  long  time  by  the  courts  of  common  law,  was, 
331  *  'notwithstanding,  supported  by  the  Court  of  Chancery, 
and  became  well  known  by  the  name  of  a  use. 

2.  The  introduction  of  this  novelty  has  been  attended  with  the 
most  important  consequences  ;  for  though,  at  first,  it  appears  to 
have  been  but  a  trivial  innovation,  yet  in  its  progress  it  has,  in 
fact,  produced  a  revolution  in  the  system  of  real  property,  and 
has  introduced  a  mode  of  transferring  land  very  different  from 
that  which  the  old  law  had  originally  established ;  for  the  doc- 
trine of  uses  is  become  the  foundation  of  the  modern  system  of 
conveyancing. 

3.  A  use  was  created  in  the  following  manner : — The  owner  of 
a  real  estate  conveyed  it  by  feoffment,  with  livery  of  seisin  to 
some  friend,  with  a  secret  agreement  that  the  feoffee  should  be 
seised  of  the  lands  to  the  use  of  the  feoffor,  or  of  a  third  person. 
Thus  the  legal  seisin  was  in  one,  and  the  use  or  right  to  the 
rents  and  profits  was  in  another. 

4.  It  would  be  a  matter  of  considerable  difficulty  to  ascertain 
the  precise  time  when  this  distinction  between  the  legal  seisin 
and  the  right  to  the  rents  and  profits  was  first  introduced.  It  is, 
however,  certain,  that  the  practice  of  conveying  lands  to  one  per- 
son, to  the  use  of  another,  did  not  become  general  till  the  reign 
of  King  Edward  III.,  when  the  ecclesiastics  adopted  it,  in  order 
to  evade  the  Statutes  of  Mortmain,  by  procuring  conveyances  of 
lands  to  be  made,  not  directly  to  themselves,  but  to  some  lay  per- 
sons ;  with  a  secret  agreement  that  they  should  hold  the  lands 
for  the  use  of  the  ecclesiastics,  and  permit  them  to  take  the  rents 
and  profits,  (a) 

5.  The  idea  of  a  use,  and  the  rules  by  which  it  was  first  regu- 
lated, are  now  generally  admitted  to  have  been  borrowed  by  the 
ecclesiastics  from  the  Fidei  Commissum  of  the  civil  law,  of  which 
it  will,  therefore,  be  necessary  to  give  some  account,  (b) 

6.  By  the  Roman  law,  a  great  number  of  persons  were  inca- 
pable of  being  constituted  heirs,  or  even  of  taking  a  legacy  under 

(a)  Bac.  Read.  Ed.  17S5.  22.    1  Rep.  123.  a.  (6)  Bac.  Bead.  19. 


Title  XL     Use.     Ch.  I.  s.  6—9.  295 

the  testament  of  a  Roman  citizen  ;  such  as  exiles,  unmarried 
persons,  those  who  had  no  children,  &c.  In  order  to  evade  this 
law,  it  became  usual  for  testators  to  constitute  some  person  to  be 
their  heir,  who  was  capable  of  taking  the  inheritance  ;  and  to 
annex  a  request  to  the  devise,  that  the  person  thus  constituted 
heir  should  give  the  property  to  some  other  person  who  was  in- 
capable of  taking  directly  under  the  will.  Quibus  enim 
non  *poterunt  hcereditatem  vel  legata  relinquere,  si  relin-  *  332 
qiiebant,  fidei  committebant  eorum  qui  caper e  ex  testamento 
poterant.  (a) 

7.  This  was  called  a  Fidei  Commissum,  of  which  the  form  is 
preserved  in  Justinian's  Institute. —  Cum  igitur  aliquis  scripserit, 
Lucius  Titius  Hceres  esto ;  potest  adjicere,  Rogo  te  Luci  Titi,  tit 
cum  primum  poteris  hcereditatem  meam  adirc,  earn  Caio  Seio 
reddas,  restituas.  And  in  cases  of  this  kind,  the  person  thus 
constituted  heir  was  called  Hceres  Fiduciarius,  and  the  person  to 
whom  the  testator  directed  the  inheritance  to  be  given  was  called 
Hceres  Fidei-commissarius.  (b) 

8.  The  Hceres,.  Fidei-commissarius  had  only  what  the  Roman 
lawyers  called  a  Jus  Precarium,  that  is,  a  right  in  curtesy,  for 
which  the  remedy  was  only  by  entreaty  or  request ;  so  that  the 
hceres  fiduciarius  was  under  no  legal  obligation  of  complying 
with  the  request  of  the  testator.  Sciendum  itaque  est  omnia 
fidei-commissa  primis  temporibus  infirma  fuisse  ;  qida  nemo  in- 
vitus  cogebatur  prcestare  id  de  quo  rogatus  erat.  Et  ideo  fidei 
commissa  appellata  sunt,  quia  nidlo  vinculo  juris,  sed  tantum 
pudore  eorum  qui  rogabantur,  continebantur.  (c) 

9.  Thus  stood  the  Roman  law  respecting  the  Fidei  commissum 
for  some  centuries,  during  which  several  frauds  were  committed 
by  those  who,  being  constituted  heirs,  with  a  direction  to  give 
the  inheritance  to  some  other  person,  refused  to  execute  the  trust 
reposed  in  them  by  the  testator,  and  converted  the  property  to 
their  own  use.  This  induced  the  Emperor  Augustus  to  direct 
the  consuls  to  take  cognizance  of  all  future  cases  of  this  kind. — 
Postea  Divus  Augustus  Primus,  semel  iterumque  gratia  persona- 
rum  motus,  vel  quia  per  ipsius  salutem  rogatus  quis  diceretur,  aut 
ob  insignem  quorundam  perfidiam,  jussit  consulibus  auctoritatem 
suam  interponere.      Quod  quia  justum  videbatur,  et  popular e  erat, 

(a)  Vinnius,  ad  Instit.  lib.  2.  tit.  23.  s.  1.     (P.  Voet,  ad  eundem.)    Just.  Inst.  lib.  2.   tit. 
23.  s.  1. 

(b)  Just.  Inst.  lib.  2.  tit.  23.  s.  1.  (c)  Just,  Inst.  lib.  2.  tit.  23.  s.  1. 


296  Title  XL     Use.    Cli.  I.  s.  9—12. 

paulatim  conversum  est  in  assiduam  jurisdictionem ;  tantusque 
eorum  favor  f actus  est,  ut  paulatim  etiam  Prcetor  proprius  creare- 
tur,  'qui  de  Fidei-commissis  jus  diceret,  quern  Fidei-commissarium 
appellabant.  (a.) 

10.  The  Emperor  Justinian  completed  this  system,  and  ex- 
tended the  rights  of  the  Hceres  Fidei-commissarius  by  a  law 
which  enacted,  that  if  a  testator  should  direct  the  person  whom 
he  instituted  his  heir  to  give  either  the  whole,  or  a  part  of  the 
inheritance,  to  another,  and  this  circumstance  could  not  be 
proved,  either  by  the  written  will  of  the  testator,  or  the  testimony 

of  five  witnesses,  in  case  the  person  instituted  heir  should 
*333     refuse  to  *  comply  with  the  intentions  of  the  testator,  he 

was  compellable  either  to  take  a  solemn  oath  that  the  tes- 
tator had  not  created  any  fidei  commissum,  or  else  to  execute  the 
trust  reposed  in  him.  (b) 

11.  Upon  the  first  introduction  of  uses1  into  the  English  law, 
the  person  to  whom  a  use  was  limited,  who  was  called  the 
cestui  que  use,  was  exactly  in  the  same  situation  with  the  Hceres 
Fidei-commissarius ;  and  depended  entirely  on  the  good  faith  of 
the  feoffees  to  uses,  or  the  persons  to  whom  the  lands  were  con- 
veyed. And  it  is  natural  to  suppose,  that  while  the  rights  of  the 
cestui  que  use  were  so  extremely  precarious,  and  depended  so  en- 
tirely on  the  good  faith  of  the  feoffee  to  uses,  many  breaches  of 
trust  were  committed.  Nor  is  it  improbable  but  that  even  the 
ecclesiastics,  who  first  introduced  this  species  of  property,  be- 
came, in  some  instances,  the  dupes  of  those  to  whom  lands  had 
been  conveyed  for  their  use.  This  induced  the  clerical  chan- 
cellors of  those  times  to  consider  the  limitation  of  a  use  as  similar 
to  a  fidei-commissum,  and  binding  in  conscience  ;  they,  therefore, 
assumed  the  jurisdiction  which  the  Emperor  Augustus  had  given 
to  the  Roman  consuls,  of  compelling  the  execution  of  uses  in  the 
Court  of  Chancery. 

12.  It,  however,  soon  appeared  that  even  this  assumed  juris- 
diction was  not  sufficient  to  answer  their  purpose  ;  for  whenever 
a  positive  declaration  of  a  use  could  not  be  proved,  which  must 

(a)  Just.  Inst.  lib.  2.  tit.  23.  s.  1.  (6)  Just.  Inst.  lib.  2.  tit.  23.  s.  12. 


1  For  the  origin  and  nature  of  Uses  and  Trusts,  and  their  introduction  into  England, 
see  Spence  on  the  Equitable  Jurisdiction  of  the  Court  of  Chancery,  Vol.  I.,  part  2, 
book  3,  ch.  2. 


Title  XL     Use.     Ch.  I.  s.  12—15.  297 

frequently  have  happened,  when  uses  were  declared  in  a  secret 
manner,  by  words  only,  without  writing,  the  Court  of  Chancery 
could  not  compel  the  feoffees  to  uses  to  execute  them,  there  being 
no  leo-al  proof  that  they  held  the  lands  to  the  use  of  any  other 
persons. 

13.  To  remedy  this  inconvenience,  John  Waltham,  Bishop  of 
Salisbury,  and  Chancellor  to  King  Richard  II.,  took  advantage 
of  the  privilege  given  him  by  the  Statute  of  Westminster  2,  13 
Edw.  I.  c.  34,  of  devising  new  writs ;  and  invented  a  new  writ 
of  snbpcena,  returnable  only  into  the  Court  of  Chancery,  which 
was  used  there  for  the  same  purpose  as  a  citation  in  the  courts  of 
civil  and  canon  law,  to  compel  the  appearance  of  a  defendant,  and 
to  oblige  him  to  answer  upon  oath  the  allegations  of  the  plaintiff, 
contrary  to  one  of  the  first  principles  of  the  common  law,  that  no 
man  can  be  compelled  to  charge  himself. 

14.  It  is  well  known  how  averse  the  English  nation 
always  *  was  from  any  alteration  of  their  ancient  customs,     *  334 
and  that  they  were  particularly  jealous  of  every  maxim  or 

rule  taken  from  the  civilians  or  canonists,  which  was  attempted 
to  be  introduced  or  substituted  in  the  room  of  the  common  law. 
Accordingly,  we  find  that  this  innovation  did  not  pass  unnoticed. 
For  early  in  the  next  reign, — namely,  in  2  Hen.  IV.,  the  Com- 
mons took  notice  of  this  writ  of  snbpcena,  and  presented  a  strong 
petition  to  the  king  against  it,  praying  that  it  might  be  abolished  ; 
to  which  Henry,  who  was  not  then  firmly  settled  on  the  throne, 
gave  a  palliating  answer,  (a) 

15.  Another  petition  was  presented  by  the  Commons  to  King 
Henry  V.,  complaining  of  the  hardships  to  which  all  persons 
were  become  liable,  from  the  introduction  of  this  new  writ  of 
subpoena ;  observing  that  it  was  a  novelty,  against  the  form  of 
the  common  law,  which  John  Waltham,  late  Bishop  of  Salisbury, 
out  of  his  subtilty  found  out  and  begun,  by  which  persons  were 
compelled  to  answer  upon  oath,  pursuant  to  the  form  of  the  civil 
law,  and  the  law  of  the  holy  church;  praying  that  those  who 
sued  out  such  a  writ  should  insert  in  it  all  their  allegations. 
And  that  if  any  person  was  aggrieved  by  a  writ  of  this  kind,  in 
any  matter  which  was  determinable  at  common  law,  he  should  be 
paid  the  sum  of  .£40.  To  this  the  king  returned  an  answer  in 
the   negative ;   by  which   this   writ  of  snbpcena  became  firmly 

(«)  Rot.  Pari.  vol.  3.  471. 


298  Title  XL     Use.     Ch.  I.  s.  15—18. 

established ;  and  was  thenceforth  constantly  used  for  the  purpose 
of  compelling  all  persons  to  declare  on  oath  whether  they  held 
particular  lands  to  their  own  use,  or  to  the  use  of  others,  (a) 

16.  From  this  account  of  the  progress  of  uses,  it  evidently  ap- 
pears that  the  ecclesiastical  chancellors  adopted  the  principles  of 
the  civil  law  in  the  support  of  them ;  and  that  the  Bishop  of  Salis- 
bury derived  the  idea  of  the  writ  of  subpoena,  returnable  into 
Chancery,  from  that  law  of  Justinian,  which  has  been  mentioned 
in  the  preceding  part  of  this  chapter. 

17.  Notwithstanding  the  invention  of  the  writ  of  subpoena,  it 
appears  that  the  Court  of  Chancery  did  not  immediately  possess 
itself  of  that  absolute  jurisdiction  over  persons  enfeoffed  to  uses, 
which  it  afterwards  exercised.  For  in  the  Rolls  of  Parliament, 
9  Hen.  V.,  there  is  a  petition  from  William  Lord  Clynton,  stating, 
that  upon  his  going  on  an  expedition  to  Ireland,  he  had  enfeoffed 
William  de  la  Poole  of  all  his  lands,  for  the  performance  of  his 

will,  which  the  said  Poole  refused  to  perform  ;  and  prayed 
335*     remedy.    *  When,  upon  full  proof  of  the  surmise  aforesaid, 

it  was  enacted,  Poole  being  present,  that  he  should  reen- 
feoff  the  said  lord,  or  whom  he  would,  and  their  heirs  for  ever, 
discharged  of  all  incumbrances  done  by  the  said  Poole;  the 
which  Poole  did  in  open  parliament,  in  two  deeds,  there  en- 
rolled, (b) 

18.  The  abuses  arising  from  the  writ  of  subpoena  were,  in  some 
degree,  restrained  by  the  Statute  15  Hen.  VI.  c.  4,  which,  after 
reciting, — "  That  divers  persons  had  been  greatly  vexed  and 
grieved  by  writs  of  subpoena,  purchased  for  matters  determinable 
by  the  common  law  of  the  land,  to  the  great  damage  of  such 
persons  so  vexed,  and  in  subversion  and  impediment  of  the 
common  law."  It  was  enacted  that  no  writ  of  subpoena  should 
be  granted,  until  surety  was  found  to  satisfy  the  party  so  grieved 
and  vexed  for  his  damages  and  expenses,  if  the  matter  could  not 
be  made  good  which  was  contained  in  the  bill. 

(a)  Kot.  Pari.  vol.  4.  84.  (b)  Kot.  Pari.  vol.  4,  151. 


299 


CHAP.  H. 

NATURE  OF  A  USE  BEFORE  THE  STATUTE  27  HEX.  VIII. 


Sect.     1.  A  Use  ivas  a  Rigid  in  Con- 
science only. 
8.  Founded  on  Confidence  in  the 
Person. 
12.  And  Privity  of  Estate. 
15.   Who  might  be  seised  to  Uses. 
19.   What  might   be   conveyed  to 
Uses. 
Rules    by  which    Uses   were 

governed. 
Could  not  be  raised  without 
Consideration. 
22.  Not  an  object  of  Tenure. 
24.  Not  subject  to  Forfeiture. 

26.  Not  extendible,  nor  Assets. 

27.  Not    subject    to    Curtesy   or 
Dower. 


20 


21. 


Sect.  28.   Uses  icere  alienable. 

32.  Without    Words    of   Limita- 

tion. 

33.  Might  commence  in  future 

34.  Might  be  revoked. 

35.  And  change  by  Matter   sub- 

sequent. 

36.  Were  devisable. 
38.  And  descendible. 

40.  Inconveniences  of  Uses. 

41.  Statutes    made    to     remedy 

them. 
45.   [Distinction    between     Uses 
and     Trusts     before     the 
Stat.    27    Hen.    VIII.    c. 
10.] 


Section  1.  Lord  Bacon,  in  his  justly  celebrated  Reading  on 
the  Statute  of  Uses,  observes,  that  it  is  the  nature  of  all  human 
science  and  knowledge  to  proceed  most  safely  by  negative  and 
exclusive,  to  what  is  affirmative  and  inclusive  ;  and  then  says, — 
"  An  use  is  no  right,  title,  or  interest  in  law."  Neither  jus  in  re, 
nor  ad  rem,  that  is,  neither  an  estate  nor  a  demand  ;  so  that  it 
was  nothing  for  which  a  remedy  was  given  by  the  course  of  the 
common  law,  being  a  species  of  property  totally  unknown  to  it, 
and  for  which  it  was,  therefore,  impossible  that  it  should  have 
made  any  provision,  (a) 

2.  Lord  Bacon  then  proceeds  to  state  affirmatively  what  a  use 
is ;  and  after  giving  the  definition  of  a  use  from  Plowden,  352, 
— namely,  that  a  use  is  a  trust  reposed  by  any  person  in  the 
terre-tenant,  that  he  may  suffer  him  to  take  the  profits,  and  that 


(a)  Bac.  Read.  5.    1  Rep.  140.  a, 


300  Title  XL     Use.     Ch.  II.  s.  2—5. 

337  *  he  *  will  perform  his  intent,  he  says,  Usus  est  dominium 
fiduciarium;  use  is  an  ownership  intrust.  So  that  usus 
et  status,  sive  possessio,  potius  differunt  secundum  rationem  fori, 
quam  secundum  naturam  rei;  for  that  one  of  them  is  in  court  of 
law,  the  other  in  court  of  conscience,  (ay 

3.  The  reason  why  the  cestui  que  use  had  no  property  what- 
ever, by  the  common  law,  in  the  lands  given  to  his  use,  was, 
because  where  lands  were  legally  conveyed  to  one  person  to  the 
use  of  another,  the  limitation  of  the  use  was  deemed  absolutely 
void ;  as  it  only  derived  its  effect  from  the  declaration  of  the 
feoffor  ;  whereas  no  legal  right  to  a  freehold  estate  in  lands  could 
be  transferred,  without  the  ceremony  of  livery  of  seisin. 

4.  Thus,  in  a  case  mentioned  in  the  Year  Books,  where  A 
enfeoffed  B  to  the  use  of  himself,  the  judges  observe,  that  in 
Chancery  a  man  shall  have  his  remedy  according  to  conscience ; 
but  in  the  Common  Pleas  and  the  King's  Bench  it  was  other- 
wise ;  for  the  feoffee  should  have  the  land,  and  the  feoffor  should 
have  nothing  against  his  own  feoffment,  though  it  was  only 
upon  confidence.  And  it  is  said  in  Plowden,  349,  that  by  the 
common  law  cestui  que  use  could  not  enter  upon  the  land ;  but 
if  he  had  entered,  the  feoffees  might  have  an  action  of  trespass 
against  him,  and  punish  him ;  for  the  land  as  fully  belonged  to 
the  feoffees,  as  if  there  had  been  no  use  of  it;  so  that  if  the 
feoffees  had  ousted  the  cestui  que  use,  or  had  sued  him  for 
taking  the  profits,  he  would  not  have  any  answer  or  defence  at 
the  common  law,  but  was  driven  to  seek  his  remedy  in  a  court 
of  conscience,  (b) 

5.  Although  the  cestui  que  use  was  generally  in  possession  of 
the  lands,  yet  he  was  only  considered,  by  the  courts  of  common 
law,  as  tenant  at  sufferance  ;  his  title  to  the  land  was  of  so  low 
and  precarious  a  nature,  that  he  could  not  even  justify  the  seizing 
of  cattle  for  trespass.  And  if  he  made  a  lease,  the  lessee  might 
plead  that  he  had  nothing  in  the  land,  (c) 

(«)  (Bacon,  Read.  9.)  (b)  4  Edw.  4.  3.  (c)  1  Rep.  140.  a. 

1  Chief  Baron  Gilbert  describes  an  Use  to  be  "  where  the  legal  estate  of  lands  is  in 
a  certain  person,  and  a  trust  is  also  reposed  in  him,  and  all  persons  claiming  in  privity 
under  him,  concerning  those  lands,  that  some  person  shall  take  the  profits,  and  be  so 
seised  or  possessed  of  that  legal  estate,  to  make  and  execute  estates  according  to  the 
direction  of  the  person  or  persons  for  whose  benefit  the  trust  was  created."  Gilb.  on 
Uses,  p.  1. 


Title  XL     Use.    Ch.  II.   s.  6—9.  301 

6.  When  the  Court  of  Chancery  first  assumed  a  jurisdiction 
in  cases  of  uses,  it  went  no  farther  than  to  compel  payment  of 
the  rents  and  profits  to  the  cestui  que  use.  In  process  of  time  it 
proceeded  another  step ;  and  established  it  as  a  rule  that  the 
cestui  que  use  had  a  right  to  call  on  the  feoffees  to  -uses  for  a 
conveyance  of  the  legal  estate  to  himself,  or  to  any  other  person 
whom  he  chose  to  appoint ;    and  also  to  compel  him  to 

*  defend  the  title  to  the  land.  Hence  Lord  Bacon  has  *  338 
said  that  a  use  consists  of  three  parts  : — "  The  first,  that 
the  feoffee  will  suffer  the  feoffor  to  take  the  profits ;  the  second, 
that  the  feoffee,  upon  the  request  of  the  feoffor,  or  notice  of  his 
will,  will  execute  the  estate  to  the  feoffor  or  his  heirs,  or  any 
other  by  his  direction  ;  the  third,  that  if  the  feoffee  be  disseised, 
and  so  the  feoffor  disturbed,  the  feoffee  will  reenter,  or  bring  an 
action  to  recontinue  the  possession.  So  that  these  three,  per- 
nancy of  the  profits,  execution  of  estates,  and  defence  of  the  land, 
are  the  three  points  of  a  trust  or  use."  (a) 

7.  As  to  the  legal  estate  in  the  land,  it  was  vested  in  the 
feoffee  to  uses,  who  performed  the  feudal  services,  and  who  was 
in  every  respect  deemed  to  be  the  tenant  of  the  fee  ;  for  it  was 
liable  to  all  his  incumbrances  ;  his  widow  was  dowable  of  it ;  if 
he  died,  leaving  an  infant  heir,  the  lord,  as  guardian  to  the  infant, 
became  entitled  to  hold  the  lands  during  the  infancy  ;  and  if  he 
was  attainted  of  treason  or  felony,  they  were  forfeited. 

8.  The  right  in  conscience  and  equity  to  the  rents  and  profits 
of  land,  which  constituted  a  use,  was  not  issuing  out  of  the  land, 
but  was  collateral  thereto,  and  only  annexed  in  privity  to  a  par- 
ticular estate  in  the  land  ;  that  is,  the  use  was  not  so  attached  to 
the  land,  that  when  once  created  it  must  still  have  existed,  into 
whose  hands  soever  the  lands  passed,  as  in  the  case  of  a  rent,  or 
right  of  common,  but  it  was  created  by  a  confidence  in  the  origi- 
nal feoffee  ;  and  continued  to  be  annexed  to  the  same  estate,  as 
long  as  that  confidence  subsisted,  and  the  estate  of  the  feoffees 
remained  unaltered.  So  that  to  the  execution  of  a  use  two 
things  were  absolutely  necessary ;  namely,  confidence  in  the  per- 
son, and  privity  of  estate,  (b) 

9.  Confidence  in  the  person  signified  the  trust  reposed  in  the 
feoffees,  that  arose  from  the  notice  given  them  of  the  use,  and  of 

(«)  Bac.  Read.  10.  (b)  1  Rep.  122.  a.    Plowd.  352.    Poph.  71. 

vol.  i.  26 


302  Title  XL     Use.    Ch.  II.  s.  9—11. 

the  persons  who  were  intended  to  be  benefited  by  the  feoffment ; 
which  was  sometimes  expressed,  and  sometimes  implied.  Thus 
if  a  feoffee  to  uses  enfeoffed  another  person  of  the  land,  who  had 
notice  of  the  uses  to  which  such  land  was  liable,  the  new  feoffee 
took  it  under  an  implied  confidence,  and  was  compellable  to  exe- 
cute the  use.  For  it  was  resolved  that  whenever  there  were 
feoffees  to  a  use,  their  heirs  and  feoffees,  and  all  who  came  into 
the  land  under  them,  in  the  per,  without  consideration,  and  with 

notice  of  the  use,  should  be  seised  to  such  use,  and  be 
339  *    compelled  *  in  chancery   to  execute  it.     But  if  a  feoffee 

to  uses  enfeoffed  a  stranger  of  the  land,  for  valuable  con- 
sideration, and  without  notice  of  the  use,  as  in  that  case,  there 
was  no  confidence  in  the  person,  either  express  or  implied,  the 
use  was  destroyed ;  and  the  new  feoffee  could  not  be  compelled 
to  execute  it.  (a) 

10.  If,  however,  a  stranger  purchased  lands  from  a  feoffee  to 
uses,  for  a  valuable  consideration,  with  notice  of  the  uses  to 
which  the  lands  had  been  conveyed,  he  would,  in  that  case,  be 
compelled  to  perform  them.  For  although  the  consideration  im- 
plied a  seisin  to  his  own  use,  yet  the  notice  of  the  former  uses 
was  a  circumstance  which,  in  the  Court  of  Chancery,  would  ren- 
der him  liable  to  the  performance  of  them,  (b) 1 

11.  The  doctrine  of  confidence  in  the  person  was  at  first  ex- 
tremely limited,  as  it  only  extended  to  the  original  feoffee  ;  for 
Lord  Bacon  says,  the  judges,  in  8  Edw.  IV.,  were  of  opinion  that 
a  subpcena  did  not  lie  against  the  heir  of  the  feoffee,  who  was  in 
by  law,  but  that  the  cestui  que  use  was  driven  to  his  bill  in  par- 
liament. It  appears,  however,  to  have  been  settled  in  the  reign 
of  King  Henry  VI.  that  a  subpoena  would  lie  against  all  those 
who  came  in  in  the  per,  without  paying  a  valuable  consideration, 
and  also  against  all  those  who  had  notice  of  the  former  uses ; 
although  they  did  pay  a  valuable  consideration,  (c) 

(a)  Bro.  Ab.  tit.  Feoff.  Al.  Use,  pi.  10.    1  Rep.  122.  b.     Gilb.  Uses,  178. 
(6)  1  Rep.  122.  b.     Gilb.  Uses,  179. 
'(c)  Bac.  Read.  23.     Keihv.  42. 


]  See  Story  on  Equity  Jurisp.  Vol.  L  §  395,  Vol.  II.  §  1257  ;  4  Kent,  Coram.  307  ; 
1  Fonbl.  Eq"  book  2,  ch.  6,  §  2  ;  Murray  v.  Ballou,  1  Johns.  Ch.  566  ;  Dunlap  v.  Stet- 
son, 4  Mason,  349;  Saunders  v.  Dehew,  2  Veru.  271  ;  Adair  v.  Shaw,  1  Sch.  &  Lefr. 
262,  per  Ld.  Bedesdale ;  Wilson  v.  Mason,  1  Cranch.  100,  per  Marshall,  C.  J.  ; 
Thompson  v.  Wheatley,  5  Sm.  &  Marsh.  499 ;  Harrisburg  Bank  v.  Tyler,  3  Watts  & 
Serg.  373  ;  Lee  v.  Tiernan,  Addis.  B.  343. 


Title  XL     Use.    Ch.  II.  s.  12—15.  303 

12.  With  respect  to  privity  of  estate,  it  is  to  be  observed  that 
a  use  was  a  thing  collateral  to  the  land,  and  only  annexed  to  a 
particular  estate  in  the  land,  not  to  the  mere  possession  thereof; 
so  that  whenever  that  particular  estate  in  the  land  to  which  the 
use  was  originally  annexed  was  destroyed,  the  use  itself  was 
destroyed.  Thus  where  a  person  came  into  the  same  estate 
whereof  the  feoffee  to  uses  was  seised,1  such  person  was  liable 
to  the  performance  of  the  uses.  But  if  he  came  in  of  any  other 
estate  than  that  whereof  the  feoffee  to  uses  were  seised,2  even 
with  full  notice  of  the  use ;  yet  as  the  privity  of  estate  was 
thereby  destroyed,  the  lands  were  no  longer  liable  to  the  uses,  (a) 

13.  It  followed  from  these  principles  that  where  a  feoffee  to 
uses  was  disseised,  the  disseisor  could  not  be  compelled  in  chan- 
cery to  execute  the  use,  because  the  privity  of  estate  was  de- 
stroyed. For  the  disseisor  came  in  in  the  post,  that  is,  he  did 
not  claim  by  or  from  the  feoffee  to  uses,  but  came  in  of  an  estate 
paramount  to  that  of  such  feoffee.     Whereas  if  a  person 

was  *  disseised  of  lands  which  were  liable  to  a  rent,  right    *  340 
of  common,  or  other  charge  of  that  kind,  the  lands  would 
still  continue  subject  to  those  charges,  notwithstanding  the  dis- 
seisin;  because  they  were    annexed   to   the   possession    of  the 
land,  (b) 

14.  In  the  same  manner  where  a  feoffee  to  uses  died  without 
heirs,  or  committed  a  forfeiture,  or  married ;  neither  the  lord  who 
entered  for  his  escheat  or  forfeiture,  nor  the  husband  claiming 
the  lands  as  tenant  by  the  curtesy,  nor  the  wife  who  was  as- 
signed dower,  were  subject  to  the  uses,  because  they  were  not  in 
in  the  per;  that  is,  in  privity  of  the  estate  to  which  the  use  was 
annexed,  but  claimed  an  interest  paramount  to  it.  (c) 

15.  With  respect  to  the  persons  who  were  capable  of  being 
feoffees  to  uses,  all  private  persons  whom  the  common  law 
enabled  to  take  lands  by  feoffment,  might  be  seised  to  a  use  ;  and 
were  compellable  in  chancery  to  execute  it.  Thus  Lord  Bacon 
says, — "  A  feme  covert,  and  an  infant,  though  under  the  years  of 
discretion,  may  be  seised  to  a  use.  For  as  well  as  land  might 
descend  to  them  from  a  feoffee  to  use,  so   might  they  originally 

(a)  1  Rep.  139.  b.  (b)  1  Rep.  139.  b.  122.  b.  (c)  1  Rep.  122.  a. 

1  As,  for  example,  by  purchase  or  descent  from  him. 

2  Namely,  by  paramount  title,  or  by  disseisin. 


304  Title  XL     Use.     Ok.  II.  s.  15—17. 

be  enfeoffed  to  a  use."  But  a  corporate  body  could  not  be  seised 
to  a  use  ; 1  because  the  Court  of  Chancery  could  not  issue  any 
process  against  them  for  the  execution  of  it.  And  a  corporation 
could  not  be  intended  to  be  seised  to  any  other's  use.  (a) 

16.  Neither  the  king,  nor  a  queen  regnant,  on  account  of  then- 
royal  capacity,  could  be  seised  to  any  use  but  their  own  ;  that  is, 
they  might  hold  the  lands,  but  were  not  compellable  to  execute 
the  use ;  as  no  process  could  be  awarded  against  them  by  the 
Court  of  Chancery,  (b) 

17.  When  King  Richard  III.  was  Duke  of  Gloucester,  he  had 
been  frequently  made  feoffee  to  uses,  so  that  upon  his  accession 

la)  Bac.  Read.  58.     Plowd.  102.  (b)  Year  Book,  7  Edw.  4.  17. 

1  Three  reasons  have  been  assigned  for  this  disability;  namely,  that  a  corporation, 
by  its  very  nature,  is  not  subject  to  any  personal  process  of  Chancery  to  compel  the 
execution  of  the  use  or  confidence  ;  that  it  cannot  execute  any  use  for  others  without 
wronging  the  founder,  its  capacity  being  created  for  a  specific  purpose  or  use  certain  ; 
and  that  the  Statute  of  Uses,  where  it  speaks  of  the  feoffee,  employs  only  the  word 
person  ;  whereas,  when  it  speaks  of  the  cestui  que  use,  it  says,  person  or  body  politic.  See 
Bacon  on  Uses,  by  Howe,  p.  57  ;  Ibid.  p.  42,  and  note  (66) ;  Gilbert  on  Uses,  by  Sug- 
den,  p.  5,  n.  1 ;  Cornish  on  Uses,  p.  128  ;  Sanders  on  Uses,  &c,  Vol.  II.  p.  27,  note  (4), 
5th  ed.;  2  Preston  on  Convey,  p,  254.  These  reasons,  howevei-,  have  not  been  deemed 
entirely  satisfactory  in  England  ;  and  the  doctrine  has  been  found  inconvenient,  as  it 
goes  to  prevent  a  corporation  from  conveying  by  deed  of  bargain  and  sale,  or  by  any 
other  instrument,  deriving  its  effect  from  the  Statute  of  Uses.  To  avoid  this  incon- 
venience, and  to  enable  corporations  to  convey  in  those  modes,  a  distinction  has  been 
taken  between  standing  seised  to  an  use,  and  giving  an  use  ;  it  being  held  that  a  cor- 
poration may  well  convey  by  way  of  use,  though  it  cannot  take,  or  stand  permanently 
seised,  to  the  use  of  others.  Holland  v.  Bonis,  2  Leon.  121,3  Leon.  175  ;  2  Com.  Dig. 
tit.  Bargain  and  Sale,  b.  3.  But  the  authors  above  cited,  as  well  as  other  jurists,  plainly 
regard  this  distinction  as  a  refinement  not  fit  to  be  followed  in  judicial  decisions  ;  and 
the  rule  itself  is  now  defended  in  England  rather  upon  the  ground  of  authority  than  of 
principle.  In  the  United  States,  neither  of  the  reasons  originally  given  for  the  rule, 
have  any  application  ;  for  corporations  are  subject  to  the  process  of  Chancery,  the 
answer  and  discovery  being  made  by  their  officers  ;  Story  on  Eq.  Plead.  §  235  ;  and 
obedience  being  enforced  by  distringas,  sequestration,  and  injunction,  the  execution  of 
an  use  can  work  no  injury  to  the  designs  of  the  founder,  whatever  may  be  said  of  certain 
trusts,  foreign  to  the  purposes  of  the  corporation ;  and  as  to  the  word  person,  in  the 
statute,  it  is  now  generally,  and  perhaps  universally,  held,  to  apply  as  well  to  bodies 
corporate  as  to  individuals.  United  States  v.  Amedy,  11  Wheat.  392 ;  Planters'  and 
Merch.  Bank  v.  Andrews,  8  Port.  404.  And  see  Louisville  Eailroad  Co.  v.  Letson, 
2  How.  S.  C.  R.  497.  It  is,  therefore,  the  rule  of  American  law,  that  corporations  may 
be  seised  to  any  use  or  trust,  not  foreign  to  the  purposes  of  their  creation.  2  Kent, 
Comm.  279,  280  ;  Angell  &  Ames  on  Corporations,  ch.  5,  p.  100—105,  153,  154,  2d  ed. 
See  post,  tit.  1 2,  ch.  1 .  [So  may  voluntary,  unincorporated  associations,  that  are  capable 
of  being  designated,  identified  and  ascertained  by  legal  proof.  Tucker  v.  Seaman's  Aid 
Society,  7  Met.  188;  Washburn  v.  Scwall,  9  lb.  280;  Earle  v.  Wood,  8  Cush.  430; 
King  v.  Parker,  9  lb.  71  ;  Post,  ch.  3,  §  22,  note,  p.  *354.] 


Title.  XL     Use.     Ch.  II.  s.  17—21.  305 

to  the  throne,  he  would  have  been  entitled  to  hold  the  lands  so 
conveyed  to  him,  discharged  of  the  uses.  To  obviate  so  notorious 
an  injustice,  an  act  of  parliament  was  immediately  passed,  by 
which  it  was  enacted  that  where  the  king  had  been  so  enfeoffed 
jointly  with  other  persons,  the  lands  should  vest  in  the  other 
feoffees,  as  if  he  had  never  been  named.  And  that  where  the 
king  stood  solely  enfeoffed  to  uses,  the  estate  should  vest  in  the 
cestui  que  use  in  like  manner  as  he  had  the  use.  (a) 

18.  A  queen  consort  could  not  be  seised  to  a  use ;  for  al- 
though she  was  enabled  to  grant  and  purchase  without 

the* king,  yet  in  regard  of  the  government  and  interest     *341 
which  the  king  had  in  her  possessions,  she  could  not  be 
seised  to  a  use.  (6) 

19.  With  respect  to  the  species  of  property  which  might  be 
conveyed  to  uses,  it  was  held  that  nothing  whereof  the  use  was 
inseparable  from  the  possession,  such  as  annuities,  ways,  com- 
mons, &c,  quce  ipso  usu  consumuntur,  could  be  granted  to  a  use. 
But  that  all  corporeal  inheritances,  as  also  incorporeal  heredita- 
ments, which  were  in  esse,  as  rents,  advowsons  in  gross,  local 
liberties,  and  franchises,  might  be  conveyed  to  uses,  (c) 

20.  A  use  being  a  species  of  property  totally  unknown  to  the 
common  law,  and  owing  its  existence  to  the  equitable  jurisdiction 
of  the  Court  of  Chancery,  the  rules  by  which  uses  were  governed 
were  derived  from  the  civil  law ; 1  and  differed  materially  from 
those  by  which  real  property  was  regulated  in  the  courts  of 
common  law.  Hence  Lord  Bacon  has  observed,  that  uses  stood 
upon  their  own  reasons,  utterly  differing  from  cases  of  posses- 
sion, (d) 

21.  By  the  common  law,  a  feoffment  of  land  was  good  with- 
out any  consideration.  But  Lord  Bacon  says  it  was  established 
in  Chancery,  that  a  use  could  not  be  raised  without  a  sufficient 
consideration;  a  doctrine  evidently  taken  from  the  maxim  of  the 
civil  law,  ex  nudo  pacto  non  oritur  actio.  In  consequence  of 
which  the  Court  of  Chancery  would  not  compel  the  execution 

(a)  Stat.  1  Rich.  3.  c.  5.  (&)  Bac.  Read.  57. 

(c)  W.  Jones,  127.  (<*)  Bac.  Read.  13. 

i  Though  the  Roman  jurisprudence  may  be  regarded  as  the  source  of  Equity  Juris- 
diction, yet  what  was  there  found  was  largely  extended  and  improved  upon  by  the 
clerical  chancellors  and  their  successors.  See  Spence  on  the  Equitable  Jurisdiction  of 
Chancery,  Vol.  I.  p.  435. 

26* 


306  Title  XL     Use.     Ch.  II.  s.  21—26. 

of  a  use,  unless  it  had  been  raised  for  a  good  or  a  valuable  con- 
sideration ;  as  that  would  be  to  enforce  a  donum  gratuitum.  (a) 

22.  A  use  not  being  considered  as  an  estate  in  the  land,  was 
not  an  object  of  tenure  ;  and  was,  therefore,  exempt  from  all  those 
oppressive  burdens  which  were  introduced  into  England  by  the 
Normans,  as  consequences  of  the  feudal  system.  Thus  if  a 
cestui  que  use  died,  leaving  a  son,  or  a  daughter,  within  age,  the 
lord  had  not  the  wardship  or  marriage  of  the  heir,  or  a  relief  on 
the  death  of  the  ancestor ;  nor  could  he  claim  the  lands  as  an 
escheat,  on  the  death  of  the  cestui  que  use  without  heirs.  (b~) 

23.  After  the  ecclesiastics  had  been  restrained  by  the  Stat.  15 
Rich.  II.  c.  5,  from  acquiring  the  use  of  lands,  it  might  be  sup- 
posed that  the  practice  of  conveying  lands  to  uses  would  have 
ceased.     But  it  was  soon  found  that  this  was  the  most  effectual 

mode  of  evading  the  hardships  of  the  feudal  tenures. 
342  *         *  24.  Where  a  cestui  que  use  was  attainted  of  treason  or 

felony,  the  use  was  not  forfeited,  either  to  the  king,  or  to 
the  lord  of  the  fee ;  because  a  use  was  not  held  of  any  person. 
So  that  during  the  contests  between  the  houses  of  York  and 
Lancaster,  as  it  was  the  constant  practice  to  attaint  the  van- 
quished, almost  all  the  lands  of  the  nobility  were  conveyed  to 
uses,  (c) 

25.  In  some  general  acts  of  parliament  relating  to  treason,  as 
that  of  21  Rich.  II.  c.  3,1  and  in  most  particular  acts  of  attainder 
passed  after  that  time,  there  was  a  special  provision  made,  that 
the  persons  attainted  should  forfeit  all  lands  whereof  they,  or  any 
to  their  use,  were  seised.  And  in  most  of  those  acts  provision 
was  also  made  to  save  from  forfeiture  such  lands  whereof  the 
persons  attainted  were  seised,  to  the  use  of  others. 

26.  A  use  was  not  extendible,  because  there  was  no  process  at 
common  law,  but  against  legal  estates ;  for  uses  were  mere 
creatures  of  equity ;  so  that  many  persons  conveyed  their  lands 
to  uses  for  the  purpose  of  defrauding  their  creditors.     And  as  a 

(a)  Bac.  Read.  13.     (8  Mass.  E.  441.)  (b)  1  lust.  76.  b. 

(c)  1  Inst.  272.  a. 


1  This  statute,  and  all  others  enacted  in  the  same  parliament,  were  repealed  by  St. 
1  H.  4,  c.  3,  as  having  been  made  by  threats  and  constraint  of  the  king.  1  Hal.  P.  C. 
86  ;  Keble's  Statutes,  p.  188. 


Title  XL     Use.     Ch.  II.  s.  26—30.  307 

use  was  neither  a  chattel  nor  an  hereditament,  it  was  not  assets 
to  executors,  or  to  the  heir,  (a) 

27.  Another  circumstance  attending  a  use  was,  that  the  hus- 
band or  wife  of  a  cestui  que  use  could  neither  acquire  an  estate  by 
the  curtesy  or  in  dower  in  the  use ;  because  the  cestui  que  use 
had  no  legal  seisin  of  the  land.1  This  was  a  grievance  much 
complained  of,  particularly  as  to  dower  ;  and,  therefore,  it  became 
customary,  when  most  estates  in  the  kingdom  were  vested  in 
feoffees  to  uses,  to  settle  some  estates,  before  marriage,  on  the 
husband  and  wife  for  their  lives  ;  which,  as  we  have  seen,  gave 
rise  to  the  modern  jointure,  (b) 

28.  Although  a  use  was  but  a  right,  and  could  only  be  con- 
sidered as  a  chose  in  action  ;  which,  according  to  the  principles 
of  the  common  law,  is  neither  transferable  nor  assignable,  yet  a 
use  might  be  aliened.  And  Lord  Bacon  mentions  two  adjudged 
cases  in  which  a  right  to  a  use  was  allowed  to  be  transferred ;  for 
as  no  action  at  law  could  arise  from  such  a  transfer,  there  was 
no  danger  of  maintenance,  (c) 

29.  A  use  might  be  transferred  by  one  person  to  another,  by 
any  species  of  deed  or  writing.  And,  from  its  nature,  it  was 
impossible  that  it  could  be  the  subject  of  a  feoffment,  with  livery 
of  seisin.2 

30.  Lord  Bacon  says  there  is  no  case  at  common  law, 
where  a  *  person  can  take  under  a  deed,  unless  he  is  a     *343 
party  to  it.     Whereas  a  use  might  be  declared  to  a  person 

(a)  1  Rep.  121.  b.    .ytast.  374.  b.  (6)  Perk.  s.  457.     Tit.  5  &  6.     Tit.  7  c.  1. 

(c)  Bac.  Read.  16.  * 


1  And  because  no  trust  was  declared  for  their  benefit,  at  the  creation  of  the  estate. 
2  Bl.  Coram.  331  ;  Cornish  on  Uses,  p.  20. 

2  An  use  might  have  been  raised,  at  common  law,  by  parol,  upon  a  feoffment  be- 
cause the  legal  estate  might  so  pass,  —  namely,  by  a  transfer  of  possession  en  pais. 
But  since  a  deed  has  become  necessary,  by  statute,  to  pass  the  estate,  a  deed  or  at 
least  a  writing,  is  necessary  to  declare  an  use.  Gilb.  on  Uses,  p.  270,  271  ;  2  Story 
on  Eq.  Jurisp.  §  235;  Claiborne  v.  Henderson,  3  Hen.  &  Munf.  340,  354.  Where  the 
bona  fide  possessor  of  lands,  under  a  defective  title,  he  having  no  notice  of  the  defect, 
has  made  permanent  and  beneficial  improvements  upon  the  estate,  the  value  of  which 
he  is  entitled,  in  Equity,  to  recover  of  the  true  owner,  he  may  convey  this  equitable 
right  or  interest  by  parol,  accompanied  by  an  actual  transfer  of  the  possession  to  the 
purchaser.  Lombard  v.  Ruggles,  9  Greenl.  62.  And  sec  Bright  v.  Boyd,  1  Story,  R. 
478;  2  Green!,  on  Evid.  \  549;  Benedict  v.  Bebee,  11  Johns.  145.  But  a  contract  to 
transfer  the  possession  must  be  in  writing.     Howard  v.  Easton,  7  Johns.  205. 


308  Title  XL     Use.     Ch.  II.  s.  30—34. 

who  was  not  a  party  to  the  deed  by  which  the  use  was  raised ; 
because  a  conveyance  to  a  use  was  nothing  but  a  publication  of 
a  trust,  (a) 

31.  It  frequently  happened  that  ees&i  tf«e  use  being  in  pos- 
session, aliened  the  lands,  and  afterwards  the  feoffees  entered, 
which  gave  rise  to  several  vexatious  suits  in  Chancery.  To  rem- 
edy this  inconvenience,  the  Statute  1  Rich.  III.  c.  1,  gave  the 
cestui  que  use  in  possession  a  power  of  alienating  the  legal  estate, 
without  the  consent  or  concurrence  of  the  feoffees.1 

32.  In  the  alienation  of  uses,  none  of  those  technical  words 
which  the  law  requires  in  the  limitation  of  particular  estates  icere 
deemed  necessary.  Thus  a  use  might  be  limited  in  fee  simple, 
without  the  word  heirs;  for  if  a  sufficient  consideration  was 
given,  the  Court  of  Chancery  would  decree  the  absolute  property 
of  the  use  to  be  well  vested  in  the  purchaser.  And  as  a  use  was 
a  thing  which  consisted  merely  in  confidence  and  privity,  and 
was  not  held  by  any  tenure,  the  rules  of  the  common  law  were 
not  violated. 

33.  If  an  estate  had  been  limited  at  common  law  to  a  man, 
and  to  such  woman  as  he  should  afterwards  marry,  the  man 
would  have  taken  the  whole,  and  the  limitation  to  the  woman 
would  have  been  void  ;  because  a  freehold  could  not  be  created 
to  commence  infuturo  ;  but  the  limitation  of  a  use  in  this  manner 
would  have  been  good.  So  if  a  man  had  made  a  feoffment  to 
the  use  of  one  for  years,  and  after  to  the  use  of  the  right  heirs  of 
J.  S.,  this  limitation  had  been  good,  for  the  feoffees  remained 
tenants  of  the  freehold,  (b) 

34.  It  was  determined,  upon  the  same  principles,  that  a  power 
of  revocation  might  be  annexed  to  the  limitation  of  a  use ;  by 
which  means  the  grantor  might,  at  any  future  time,  revoke  the 
uses  he  had  declared,  and  limit  new  uses  to  other  persons  ;  which 
the  feoffee  to  uses  was  bound  to  execute. 

(a)  Bac.  Read.  14.     Tit.  32.  c.  2. 

(b)  1  Rep.  101.  a.    Jenk.  Cent.  8.  ca.  52.     1  Rep.  135.  a.     Tit.  16.  c.  4. 


i  This  statute  was  never  adopted  in  Maryland;  Matthews  v.  Ward,  10  G.  &  J.  443  ; 
and  is  not  known  to  have  been  recognized  as  common  law  in  any  other  of  the  United 
States.  The  Statutes  of  Uses,  see  post,  ch.  3,  §  3,  note,  provided  a  remedy  for  most  of  the 
mischiefs  which  this  act  was  designed  to  prevent ;  and  special  trusts,  which  are  not 
within  its  operation,  have,  in  most  of  the  States,  been  the  subject  of  particular  legisla- 
tion.   See  post,  tit.  12,  ch.  2,  §  7. 


Title  XL     Use.     Ch.  II.  s.  35— 38.  309 

35.  A  use  might  be  limited  in  such  a  manner  as  to  change 
from  one  person  to  another,  upon  the  happening  of  some  future 
event.  Thus  a  use  might  be  limited  to  A  and  his  heirs,  until 
B  should  pay  him  <£40  ;  and  upon  payment  of  that  sum,  the  use 
should  change  and  vest  in  B  and  his  heirs.  For  though  the 
rules  of  the  common  law  did  not  allow  any  estate  to  be  limited 
after  an  estate  in  fee  simple,  yet  the  Court  of  Chancery 
admitted  *this  species  of  limitation  to  be  good  in  the  *344 
case   of    a   use.     Because,   as    Lord   Bacon   observes, — 

"  Things  may  be  avoided  and  determined  by  the  ceremonies 
and  acts  like  unto  those  by  which  they  are  created  and  raised ; 
that  which  passeth  by  livery,  ought  to  be  avoided  by  entry; 
that  which  passeth  by  grant,  by  claim  ;  that  which  passeth  by 
way  of  charge,  determineth  by  way  of  discharge.  And  so  a  use, 
which  is  raised  but  by  declaration  or  limitation,  may  cease  by 
words  of  declaration  or  limitation ;  as  the  civil  law  saith,  in  his 
magis  consentaneum  est  ut  iisdem  modis  res  dissolvantur  quibus 
constituantur.  (a) 

36.  Uses  were  divisible,  though  at  that  time  lands  were  not.1 
And  Lord  Bacon  observes,  that  one  of  the  reasons  why  so  much 
land  was  conveyed  to  uses  was,  because  persons  acquired,  by 
that  means,  a  power  of  disposing  of  their  real  property  by  will, 
which  enabled  them  to  make  a  much  better  provision  for  their 
families  than  they  could  otherwise  have  done,  (b) 

37.  One  of  the  first  cases  in  the  Year  Books,  respecting  uses, 
was  this  : — A  woman  who  had  made  a  feoffment  to  uses  after- 
wards married,  and  by  her  will  directed  that  her  feoffees  should 
convey  the  legal  estate  to  her  husband.  It  was  adjudged  that 
the  will  was  void  at  law,  being  made  by  a  feme  covert ;  and, 
therefore,  should  also  be  void  in  Chancery,  (c) 

38.  Uses  were  descendible  in  the  same  manner  as  legal  estates. 
And  this  was  the  only  instance  in  which  the  Court  of  Chancery, 
in  cases  of  uses,  followed  the  rules  of  the  common  law.  For 
the  doctrine  of  the  half-blood  was  allowed  to  take  place  in  the 
descent  of  uses.  And  even  local  customs  were  left  unviolated 
in  this  instance.     So  that  where  a  cestui  que  use  of  lands  held  in 

(«)  Bro.  Ab.  Feoff,  al.  Use,  30.    Bac.  Read.  18.  (6)  Bac.  Read.  20.     1  Hep.  123.  b. 

(c)  Mich.  18.  Edw.  4.  11.  b. 


1  But  see  1  Spencc  on  Equit.  Jurisd.  p.  20. 


310  Title  XL     Use.     Ch.  II.  s.  38—42. 

gavelkind  or  borough  English  died,  leaving  several  sons,  the  use 
descended  either  to  all  of  them,  or  to  the  youngest,  according  to 
the  custom,  (a) 

39.  It  was  held,  upon  the  same  principle,  that  if  lands  de- 
scended on  the  part  of  the  mother,  and  the  person  in  possession 
made  a  feoffment  to  uses,  the  use  should  descend  to  the  heirs  on 
the  part  of  the  mother,  because  the  legal  estate  would  have  gone 
to  them,  (b) 

40.  Thus  stood  the  doctrine  of  uses,  as  regulated  and  settled 
by  the  Court  of  Chancery  ;  and  in  this  state  it  was,  in  some  in- 
stances, applied  to   very  useful  purposes,  by  removing  the   re- 
straints on  alienation,  and  enabling  the  proprietors  of  real 

345  *  *  property  to  exercise  several  powers  over  it,  which  were 
not  allowed  by  the  rules  of  the  common  law.  But  uses 
became  so  general,  and  were  applied  to  such  bad  purposes,  that 
at  length  they  were  productive  of  very  great  grievances.  Feoff- 
ments to  uses  were  usually  made  in  a  secret  manner,  so  that 
where  a  person  had  cause  to  sue  for  land,  he  could  not  find  out 
the  legal  tenant,  against  whom  he  was  to  bring  his  praecipe. 
Husbands  were  deprived  of  their  estates  by  the  curtesy,  and 
widows  of  their  dower ;  creditors  were  defrauded ;  the  king,  and 
the  other  feudal  lords,  lost  the  profits  of  their  tenures,  their 
wardships,  marriages,  and  reliefs,  and  an  universal  obscurity  and 
confusion  of  titles  prevailed,  by  which  means  purchases  for  valu- 
able consideration  were  frequently  defeated. 

41.  As  a  remedy  for  these  inconveniences,  several  statutes 
were  made  to  subject  uses  to  the  same  rules  as  legal  estates.  By 
the  Stat.  50  Edw.  III.,  it  was  enacted,  that  where  persons  con- 
veyed their  tenements  to  their  friends  by  collusion,  to  have  the 
profits  at  their  will,  their  creditors  should  have  execution  of 
such  tenements,  as  if  no  such  gifts  had  been  made.  By  the  Stat. 
1  Rich.  II.  c.  9,  a  feoffment  of  lands  for  maintenance  was  de- 
clared to  be  void,  and  an  assize  maintainable  against  the  pernor 
of  the  profits  of  lands.  And  by  2  Rich.  II.  St.  2,  c.  3,  fraudu- 
lent deeds,  made  by  debtors  to  avoid  their  creditors,  are  declared 
void. 

42.  By  the  Stat.  1  Hen.  VII.  c.  4,  reciting  that  divers  of  the 
king's  subjects,  having  cause  of  action  by  forme  don,  &c,  were 

(a)  1  Inst.  14  b.  (b)  Gilb.  Uses,  17.     Tit.  29.  c.  3. 


Title  XL     Use.     Ch.  II.  s.  42—45.  311 

defrauded  and  delayed  of  their  said  actions,  and  oftentimes 
without  remedy,  because  of  feoffments  made  of  the  same  lands 
and  tenements  to  persons  unknown,  &c. ;  it  was  enacted  that 
the  demandant,  in  every  such  case,  should  have  his  action 
against  the  pernor  or  pernors  of  the  profits  of  the  lands  and  tene- 
ments demanded,  whereof  any  person  or  persons  had  been  en- 
feoffed to  his  or  their  use. 

43.  By  the  Statute  4  Hen.  VII.  c.  17,  it  was  'enacted,  that  if 
any  person  or  persons  should  be  seised  of  any  estate  of  inheri- 
tance, being  tenant  immediate  to  the  lords  of  any  castles,  &c, 
holden  by  knight-service,  to  the  use  of  any  other  person  or  per- 
sons, and  of  his  heirs  only,  and  he  to  whose  use  he  or  they  were 
so  seised  dieth,  his  heir  being  within  age,  no  will  by  him  de- 
clared, nor  made  in  his  life  touching  the  premises;  the  lord  of 
whom  such  castles.  &c,  were  holden  immediately,  should 

have  a  writ  of  right  *  of  ward,  as  well  for  the  body  as  *  346 
for  the  land,  as  the  lord  should  have  had  if  the  same 
ancestor  had  been  in  possession  of  the  estate,  so  being  in  use 
at  the  time  of  his  death,  and  no  such  estate  to  his  use  made  ; 
and  that  if  any  such  heir  was  of  full  age  at  the  death  of  his 
ancestor,  to  pay  relief  as  his  ancestor,  whose  heir  he  was,  would 
have  paid  if  he  had  been  in  possession  of  that  estate,  so  being 
in  use  at  the  time  of  his  death,  and  no  such  estate  to  his  use 
made  or  had. 

44.  By  the  Statute  19  Hen.  VII.  c.  15,  it  was  enacted,  that  it 
should  be  lawful  for  every  sheriff,  or  other  officer  to  whom  any 
writ  or  precept  should  be  directed,  at  the  suit  of  any  person  or 
persons,  to  have  execution  of  any  lands,  tenements,  or  other 
hereditaments,  against  any  person  or  persons,  upon  any  condem- 
nation, statute  merchant,  &c,  to  make  and  deliver  execution  unto 
the  party  in  that  behalf  suing,  of  all  such  lands  and  tenements 
as  any  other  person  or  persons  were  in  any  manner  seised,  to  the 
only  use  of  him  against  whom  execution  was  so  sued. 

45.  [Before  the  Statute  of  the  27  Hen.  VIII.  c.  10,  it  seems  a 
distinction  was  established  between  uses,  the  nature  and  proper- 
ties of  which  have  been  considered  in  the  preceding  chapters  of 
the  present  title,  and  trusts.  Sir  Francis  Bacon  says,  where 
the  trust  is  not  special  nor  transitory,  but  general  and  permanent, 
there  it  is  a  "  use."  Thus  where  feoffor  enfeoffs  feoffee  in  fee, 
upon  a  trust  or  confidence,  that  he  would  permit  the  feoffor  and 


312  Title  XL     Use.     Ch.  II.  s.  45. 

his  heirs  to  take  the  rents  and  profits,  or  to  make  such  convey- 
ances of  the  legal  estate  as  he  or  they  should  direct.  But 
where  the  trust  was  special  or  transitory,  it  was  not  in  strict- 
ness a  use,  but  a  trust.  Thus,  where  the  feoffor  enfeoffs  the 
feoffee  in  fee,  to  the  intent  to  reenfeoff  him,  or  to  be  vouched, 
or  to  suffer  a  recovery,  this,  Bacon  denominates  the  special  trust 
lawful.]  («)  f 

(a)  Bac.  Uses,  8.    2  Salk.  676. 


[  t  For  a  more  detailed  consideration  of  the  above  distinction  and  its  conseqnences, 
see  Sanders'  Uses,  Vol.  I.  ch.  1,  s.  2.] 


313 


1. 

Statement  of  the  Statute. 

Sect 

19. 

5. 

Circumstances    necessary    to 

its  Operation. 

22 

6. 

I.  A  Person  seised  to  a  Use. 

25 

7. 

What  Persons  may  be  seised 

to  Uses. 

32 

11. 

Of  what  Estates. 

34 

12. 

Estates  Tail. 

16. 

Estates  for  Life. 

36 

chap.  m. 

STATUTE    27    HEN.   VIII.    OF    USES. 

Sect.    1.  Statement  of  the  Statute.  Sect.  19.   What    may   be    conveyed   to 

Uses. 

II.  A  Cestui  que  Use  in  esse. 
In    what    Case    the    Statute 

operates. 

III.  A  Use  in  esse. 
34.   The  Statute  then  transfers  the 

Possession. 
36.  Saving  of  all  former  Estates. 

Section  1.  Notwithstanding  the  variety  of  statutes  by  which 
it  was  endeavored  to  render  uses  subject  to  the  rules  of  the  com- 
mon law,  means  were  found  of  evading  them,  particularly  as  to 
the  feudal  profits  upon  marriages,  wardships,  and  reliefs ;  for  in 
the  Stat.  4  Hen.  VII.,  for  enabling  lords  to  have  the  wardship  of 
persons  entitled  to  a  use  only,  an  exception  was  inserted,  that  it 
should  not  take  place  where  the  ancestor  had  made  a  will,  of 
which  many  persons  took  advantage,  to  the  great  detriment  of 
the  king  and  the  great  nobility,  (a) 

2.  It  is  mentioned  in  Burnet's  History  of  the  Reformation, 
and  also  by  Mr.  Justice  Harper,  that  King  Henry  VIIL,  in  the 
23d  year  of  his  reign,  caused  a  bill  to  be  brought  into  parliament 
to  remedy  the  abuses  that  arose  from  the  universal  practice  which 
then  prevailed,  of  making  feoffments  to  uses,  which  was  rejected 
by  the  Commons.  But  four  years  after,  parliament  passed  the 
Stat.  27  Hen.  VIIL  c.  10,  intituled,  "An  Act  concerning  Uses  and 
Wills,"  usually  called,  TJie  Statute  of  Uses ;  reciting  that  by  the 
common  law,  lands  were  not  devisable  by  will,  nor  ought  to  be 
transferred  but  by  livery  of  seisin ;  yet,  nevertheless,  divers 
*  and  sundry  imaginations,  subtle  inventions  and  practices,  *  348 
had  been  used,  whereby  the  hereditaments  of  the  realm 
had  been  conveyed  by  fraudulent  feoffments,  fines,  recoveries, 

(a)  Ante,  c.  2.  s.  43. 

vol.  i.  27 


314  Title  XL     Use.     Ch.  III.  s.  2—3. 

and  other  assurances ;  and  also  by  wills  and  testaments  ;  by  rea- 
son whereof  heirs  had  been  unjustly  disinherited ;  the  lords  had 
lost  their  wards,  marriages,  reliefs,  heriots,  escheats,  aids,  &c. ; 
married  men  had  lost  their  tenancies  by  the  curtesy;  widows 
their  dower ;  and  manifest  perjuries  were  committed,  (a) 

3.  It  is,  therefore,  enacted,  (s.  1,)  "  That  where  any  person  or 
persons  stand  or  be  seised,  or  at  any  time  hereafter  shall  happen 
to  be  seised,  of  and  in  any  honors,  castles,  manors,  lands,  tene- 
ments, rents,  services,  reversions,  remainders,  or  other  heredita- 
ments, to  the  use,  confidence,  or  trust  of  any  other  person  or 
persons,  or  of  any  body  politic,  by  reason  of  any  bargain,  sale, 
feoffment,  fine,  recovery,  covenant,  contract,  agreement,  will,  or 
otherwise,  by  any  manner  or  means,  whatever  it  be ;  that  in  every 
such  case,  all  and  every  such  person  and  persons  and  bodies  poli- 
tic, that  have  or  hereafter  shall  have  any  such  use,  confidence,  or 
trust,  in  fee  simple,  fee  tail,  for  term  of  life  or  for  years,  or  other- 
wise, or  any  use,  confidence,  or  trust,  in  remainder  or  reversion, 
shall  from  henceforth  stand  and  be  seised,  deemed  and  adjudged, 
in  lawful  seisin,  estate,  and  possession  of  and  in  the  same  honors, 
castles,  &c,  to  all  intents,  constructions,  and  purposes  in  the  law, 
of  and  in  such  like  estates  as  they  had  or  shall  have  in  use,  trust, 
or  confidence  of  or  in  the  same ;  and  that  the  estate,  title,  right, 
and  possession  that  was  in  such  person  or  persons,  that  were  or 
hereafter  shall  be  seised  of  any  lands,  tenements,  or  heredita- 
ments, to  the  use,  confidence,  or  trust  of  any  such  person  or  per- 
sons, or  of  any  body  politic,  be  from  henceforth  clearly  deemed 
and  adjudged  to  be  in  him  or  them  that  have  or  hereafter  shall 
have  such  use,  confidence  or  trust,  after  such  quality,  maimer, 
form,  and  condition,  as  they  had  before,  in  or  to  the  use,  confi- 
dence, or  trust  that  was  in  them. 

(§  2.)  "  That  where  divers  and  many  persons  be  or  hereafter 
shall  happen  to  be  jointly  seised  of  and  in  any  lands,  tenements, 
rents,  reversions,  remainders,  or  other  hereditaments,  to  the  use, 
confidence,  or  trust  of  any  of  them  that  be  so  jointly  seised ; 1 

(ft)  Burnet,  Hist.  Reform,  vol.  1.  116.     2  Leon.  16. 


1  This  provision  was  inserted  to  meet  the  case  then  very  common,  where  the  owner 
himself  was  one  of  the  feoffees  ;  a  practice  deemed  not  inconvenient ;  it  being  held,  that, 
though  the  use  was  thereby  in  part  suspended,  yet  it  might  be  disposed  of  in  the  same 
manner  as  if  the  entire  legal  estate  was  vested  in  others.     1  Sugd.  on  Powers,  p.  4. 


Title  XI.     Use.     Ch.  III.  s,  3.  315 

that  in  every  such  case,  those  person  or  persons  which  have  or 
hereafter  shall  have  any  such  use,  confidence,  or  trust  in  any 
such  lands,  &c,  shall  from  henceforth  have,  and  be 
deemed  and  adjudged  to  *  have,  only  to  him  or  them  that  *  349 
have  or  hereafter  shall  have  any  such  use,  confidence,  or 
trust,  such  estate,  possession,  and  seisin  of  and  in  the  same 
lands,  &c,  in  like  nature,  manner,  form,  condition,  and  course 
as  he  or  they  had  before  in  the  use,  confidence,  or  trust  of  the 
same  lands,  tenements,  or  hereditaments."  ' 


1  The  doctrine  of  the  Statute  of  Uses,  27  Hen.  3,  eh.  10,  has  heen  very  generally 
recognized  in  the  jurisprudence  of  the  United  States.  4  Kent,  Comm.  299.  See  also 
Chamberlain  v.  Crane,  1  N.  Hamp.  64 ;  Exeter  v.  Odiorne,  Ibid.  237  ;  French  v.  French. 
3  N.  Hamp.  239  ;  Marshall  v.  Fisk,  6  Mass.  31 ;  Calvert  v.  Eden,  2  Har.  &  McH.  284; 
Bryan  v.  Bradley,  12  Conn.  474;  Report  of  the  Judges,  3  Binn.  619.  In  Ohio,  the 
Statute  of  Uses  seems  never  to  have  been  in  force;  and  uses  stand  as  they  were  before 
the  27  Hen.  3.  Thompson  v.  Gibson,  2  Ohio  R.  439  ;  Helfeinstine  v.  Garrard,  7  Ohio  R. 
275  ;  "Walker,  Introd.  p.  309,  310.  In  South  Carolina,  the  statute  is  expressly  adopted  in 
terms.  So.  Car.  Stats,  at  Large,  Vol.  II.  p.  467.  In  Indiana,  Illinois,  and  Missouri,  it  is 
reenacted  in  substance.  Ind.  Rev.  St.  1843,  p.  447,  §  181 ;  111.  Rev.  St.  1839,  p.  148; 
Missouri,  Rev.  St.  1845,  ch.  32,  §  1,  p.  218.  In  Delaware,  it  is  briefly  enacted,  that 
"lands,  tenements,  and  hereditaments  may  be  aliened  and  possession  thereof  transferred, 
by  deed,  without  livery  of  seisin  ;  and  the  legal  estate  shall  accompany  the  use  and  pass 
with  it."  Del.  Rev.  St.  1829,  p.  89,  §  1.  [This  statute  has  never  been  in  force  in  Ver- 
mont.    Gorham  v.  Daniels,  23  Vt.  (8  Washb.)  600.] 

In  Virginia,  the  Statute  of  Uses  was  part  of  the  colonial  law  of  the  State,  until  the 
general  repeal  of  all  British  statutes  in  1792.  Afterwards  a  partial  substitute  was 
adopted,  by  the  Statute  of  Conveyances  of  Feb.  24, 1819,  §  29,  Rev.  Code,  Vol.  I.  p.  370, 
by  which  the  possession  is  transferred  to  the  use,  only  in  the  cases  of  deeds  of  bargain 
and  sale,  lease  and  release,  covenants  to  stand  seised  to  uses,  and  deeds  operating  bj' 
way  of  covenants  to  stand  seised  to  uses.  A  similar  enactment  is  found  in  the  statutes 
of  North  Carolina,  Rev.  St.  1836,  Vol.  I.  ch.  43,  §  4.  p.  259  ;  of  Kentucky,  Rev.  St.  1834, 
Vol.  I.  p.  443,  §  12  ;  of  Mississippi,  How.  &  Hutch.  Dig.  p.  349,  ch.  34,  §  28;  and  of 
Florida,  Thompson's  Dig.  p.  178,  §  4. 

Upon  this  statute,  Mr.  Lomax  has  the  following  observations: — "To  give  to  the 
words  of  this  act  a  meaning  co-extensive  with  the  English  statute,  so  as  to  include 
every  case  where  there  may  be  found  a  seisin  in  one  person  and  a  use  in  another,  seems 
to  be  unwarranted  by  any  rule  of  statutory  interpretation,  nor  is  there  apparent  any 
principle  of  policy  so  imperious  as  to  require  so  free  a  construction  of  plain,  unambig- 
uous language. 

"  Of  the  three  cases  which  are  specified  in  the  act,  in  which  the  law  operates  to  exe- 
cute the  seisin  to  the  use,  two  of  them  are  plainly  cases  where  there  is  a  declaration  of 
use  without  transmutation  of  possession,  viz  ,  bargains  and  sale,  and  covenants  to  stand 
seised.  In  the  other  case  of  the  lease  and  release,  it  is  the  release  which  is  the  opera- 
tive part  of  the  conveyance  ;  and  was  at  common  law  entirely  effectual  to  enlarge  the 
estate  and  possession  of  the  lessee  into  the  measure  of  the  freehold  released.  The  act 
of  the  legislature  could  give  no  additional  efficacy  to  the  release;  and  it  is  presumed 
that  it  was  for  no  such  purpose  that  the  lease  and  release  was  enumerated  with  the 


316  Title  XL     Use.     Ch.  III.  s.  4. 

4.  It  is  evident  from  the  words  of  this  statute,  that  the  inten- 
tion of  the  legislature  was  entirely  to  abolish  uses,  by  destroying 
the  estate  of  the  feoffees  to  uses,  and  transferring  it  from  them 


other  two  assurances.  The  purpose  of  the  legislature  was  doubtless,  in  contempla- 
tion of  the  lease  alone,  to  make  that  effectual,  as  it  had  been  under  the  Statute  of 
Henry  8,  by  virtue  of  the  consideration  for  raising  a  use,  although  there  had  been  no 
actual  entry.  It  is  true  that  that  purpose  seems  to  have  been  unnecessary,  and  that  it 
was  supererogation  to  have  made  any  provision  in  regard  to  the  lease,  which  is  usually 
created  by  deed  of  bargain  and  sale  for  one  year,  and  that,  therefore,  the  provision 
transferring  the  possession  to  the  bargainee  included  the  provision  for  the  transfer  of 
the  possession  to  the  lessee.  The  legislature  may,  however,  have  intended  a  rule  appli- 
cable to  every  demise,  whether  by  bargain  and  sale  or  by  a  common  law  lease,  or  by 
any  other  species  of  assurance,  so  that,  if,  followed  by  a  release,  the  lessee,  whether  he 
had  entered  or  not,  should  be  invested  with  the  possession  as  effectually  as  if  enfeoffed 
with  livery  of  seisin.  If  this  be  the  correct  explanation  of  our  statute,  its  provisions 
are  only  intended  to  apply  to  cases  where  uses  are  created  without  transmutation  of 
possession,  and  seems  purposely  to  have  refrained  from  all  that  class  of  cases  where 
there  has  been  a  transmutation  of  possession.  According  to  what  appears  to  be  the 
reasonable  construction  of  the  act,  the  legislature  intended,  at  least  in  the  case  of  the  bar- 
gain and  sale,  and  the  lease  and  release,  without  any  reference  to  the  modus  operandi, 
that  the  bargainee  and  releasee  should  have  a  statutory  possession  of  the  land,  that 
assurances  so  framed  should  operate  as  grants.  It  seems  only  in  the  case  of  the  cove- 
nant to  stand  seised,  (if  the  words  in  one  part  of  the  clause  are  to  have  the  appropri- 
ate application  demanded  by  words  in  another  part,)  that  any  reference  is  made  to  the 
doctrine  of  uses,  as  furnishing  any  rule  or  principle  by  which  the  assurance  is  to  have 
its  operation. 

"  It  has  been  said  in  the  Court  of  Appeals,  that  '  we  have  no  general  Statute  of 
Uses ; '  and  it  v/as  held  that  where  a  use  was  devised  in  land,  the  seisin  was  not  ex- 
ecuted to  the  use,  because  devises  were  not  among  the  conveyances  enumerated  in  the 
act.     Bass  v.  Scott,  2  Leigh.  359,  per  Cabell,  J. 

"  Except,  therefore,  in  the  cases  of  bargains  and  sales,  lease  and  release,  and  cove- 
nant to  stand  seised  to  uses,  it  seems  that  all  other  uses  are  to  be  regarded  as  unexe- 
cuted, as  they  were  prior  to  the  Statute  of  Henry  8.  These  unexecuted  uses  will  com- 
prehend such  as  are  raised  by  feoffments  to  uses,  releases,  and  other  conveyances 
operating  by  transmutation  of  possession,  devises,  resulting  uses,  and  uses  by  implica- 
tion. 

"In  all  these  cases,  the  uses  will,  consequently,' remain  as  equitable  estates,  of  the 
same  nature  as  trusts,  and  not  cognizable  in  courts  of  law."  1  Lomax.  Dig.  p.  188, 
189. 

In  New  York,  it  is  declared  in  the  Revised  Statutes,  Vol.  II.  p.  13,  3d  ed.,part  2,  ch.  1, 
art.  2,  that  uses  and  trusts,  except  as  by  that  article  authorized  and  modified,  were 
abolished  ;  and  every  estate  and  interest  in  land  is  declared  to  be  a  legal  right,  cogniza- 
ble as  such  in  the  courts  of  law,  except  as  therein  otherwise  provided  ;  and  every  estate, 
then  held  as  a  use  executed  under  any  former  statute,  is  confirmed  as  a  legal  estate. 
And  every  person,  entitled  to  the  actual  possession  of  lands  and  the  receipt  of  the  rents 
and  profits  thereof,  in  law  or  equity,  by  virtue  of  any  grant,  assignment,  or  devise,  is 
declared  to  have  the  legal  estate  therein,  commensurate  with  his  beneficial  interest.  On 
this  statute,  Chancellor  Kent  has  remarked,  that  the  word  assignment  was  introduced  to 


Title  XL     Use.     Ch.  III.  s.  4—7.  317 

to  the  cestui  que  use,  by  which  means  the  use  should  be  changed 
into  a  legal  estate ;  and  the  statute  has  so  far  answered  the  in- 
tention of  the  makers  of  it,  that  no  use,  upon  which  the  statute 
operates,  can  exist  in  its  former  state  for  more  than  an  instant ; 
as  the  legal  seisin  and  possession  of  the  land  must  become  united 
to  it,  immediately  upon  its  creation  ;  so  that  where  this  statute 
operated,  lands  conveyed  to  uses  could  never,  in  future,  become 
liable  to  the  charges  or  incumbrances  of  the  feoffees ;  but,  on  the 
other  hand,  would  be  always  subject  to  the  charges  and  incum- 
brances of  the  cestui  que  use,  and  to  all  the  rules  of  the  common 
law.  Thus  they  ceased  to  be  devisable  ;  and  by  that  means  the 
great  object  of  King  Henry  VIII.  was  attained,  which  was  to 
preserve  his  right  to  wardship,  and  other  feudal  profits,  out  of 
the  lands  of  the  nobility,  (a) 

5.  There  are  three  circumstances  necessary  to  the  execution  of 
a  use  under  this  statute.  1.  A  person  seised  to  the  use  of  some 
other  person.  2.  A  cestui  que  use  in  esse.  And  3.  A  use  in  esse, 
in  possession,  remainder,  or  reversion,  (b) 

6.  With  respect  to  the  first  of  these  circumstances,  the  words 
of  the  statute  expressly  require  it ;  for  these  are,  — "  Where  any 
person  or  persons  stand  or  be  seised,  or  at  any  time  hereafter 
shall  happen  to  be  seised,  of  and  in  any  honors,  &c,  to  the  use, 
confidence,  or  trust  of  any  other  person  or  persons."  It  will, 
therefore,  be  necessary  in  this  place  to  inquire  —  first,  what  per- 
sons are  capable  of  being  seised  to  uses ;  and,  secondly,  of  what 
estate  or  interest  they  can  be  so  seised. 

7.  All  those  who  were  capable  of  being  seised  to  uses  before 
the  statute  may  still  be  seised  to  a  use.  On  the  other  side,  all 
those  who  were  incapable  of  being  seised  to  uses  before  the 
statute  still  labor  under  the  same  incapacity,  (c) 

(«)  2  Leon.  17.     (1  Atk.  592.)  (b)  (Chudleigh's  case,  1  Rep.  126.  a.) 

(c)  (Ante,  ch.  2.  §  12,  13.) 


make  the  assignment  of  terms,  and  other  chattel  interests,  pass  the  legal  interest  in 
them,  as  well  as  in  freehold  estates ;  though  the  use  in  chattel  interests  was  not  ex- 
ecuted by  the  English  Statute  of  Uses.    4  Kent,  Comm.  300. 

As  the  estate  is  thus  executed  in  the  cestui  que  use,  and  an  interest  in  lands  cannot 
now  be  conveyed  but  by  deed,  it  follows  that  a  deed  is  necessary  to  transfer  the  inter- 
est of  the  cestui  que  use  to  a  stranger.     Northampton  Bank  v.  Whiting,  12  Mass.  104. 

27* 


318  Title  XL     Use.     Ch.  III.  s.  8—11. 

8.  It  has  been  stated  that  neither  the  king  nor  the 
350  *  queen  *  could,  before  the  statute,  have  been  seised  to  a 
use,  or,  rather,  were  not  compellable  to  execute  the  use. 
This  law  continued  after  the  statute  ;  and  a  singular  case  arose 
in  35  Eliz.,  respecting  the  prerogative  of  the  crown  to  hold  lands 
discharged  of  all  uses. 

9.  A  committed  high  treason  in  18  Eliz.,  for  which  he  was 
attainted  in  26  Eliz.  Between  the  treason  and  the  attainder,  a 
fine  was  levied  to  him  by  B  of  certain  land,  to  the  use  of  B 
and  his  wife,  (who  was  sister  to  A,)  and  of  the  heirs  of  the  said 
B.  Afterwards  B  bargained  and  sold  the  lands  to  J.  S.  for  money. 
Upon  discovery  of  the  treason  and  the  attainder  of  A,  the  pur- 
chaser was  advised  by  Plowden,  Popham,  and  many  others, 
that  the  land  was  in  the  queen ;  because  the  queen  was  entitled 
to  all  the  lands  that  traitors  had,  at  the  time  of  the  treason,  or 
after ;  so  the  use  which  was  declared  to  B  and  his  wife  upon  the 
fine  was  void,  by  the  relation  of  the  right  of  the  queen  under  the 
attainder ;  and  the  queen  must  hold  the  land,  discharged  of  the 
use ;  because  she  could  not  be  seised  to  a  use.  It  is  but  justice 
to  mention,  that  the  case  being  represented  to  Queen  Elizabeth, 
she  granted  the  land  to  the  cestui  que  use.  (a) 

10.  By  the  words  of  the  statute,  which  are,  "  any  person  or 
persons,"  aliens  and  corporations  are  excluded  from  being  seised 
to  a  use.1  It  was,  therefore,  determined,  in  a  case  reported  by 
Dyer,  that  where  an  alien  and  a  natural-born  subject  were  en- 
feoffed to  uses,  the  moiety  of  the  alien  should,  upon  office  found, 
(but  not  before,)  become  vested  in  the  crown,  (b) 

11.  With  respect  to  the  estate  or  interest  of  which  a  person 
may  be  seised  to  a  use,  the  words  of  the  statute  are, — "  Where 
any  person  or  persons  stand  or  be  seised,  or  at  any  time  here- 
after shall  happen  to  be  seised."  Now,  the  word  seised  extends 
to  every  species  of  freehold  estates  ;  although  it  appears  to  have 

(a)  Pimb's  case,  Moo.  190.     1  List.  13.  a.  n.  7. 

(&)  Bac.  Read.  42—57.  King  v.  Boys,  Dyer,  283.  (Ferguson  v.  Franklin,  6  Munf.  305. 
Cornish  on  Uses,  141.) 


1  In  the  United  States,  the  word  "person,"  in  statutes,  is  held  to  apply  as  well  to 
bodies  corporate  as  to  individuals;  U.  States  v.  Amedy,  11  Wheat.  392;  and,  there- 
fore, a  corporation  may  be  seised  to  any  use  or  trust,  not  foreign  to  the  purposes  of  its 
creation.     See  ante.  ch.  2,  §  15,  note. 

As  to  the  capacity  of  aliens  to  take  and  hold  lands,  see  ante,  tit.  1,  §  39,  note. 


Title  XL     Use.     Ch.  III.  s.  11—13.  319 

been  the  general  opinion,  before  and  immediately  after  the  pass- 
ing of  this  statute,  that  all  feoffees  to  uses  must  have  been  seised 
in  fee  simple. 

12.  It  was,  therefore,  much  doubted  whether  a  tenant  in  tail 
could  be  seised  to  a  use.  Jenkins  states  it  as  a  point  determined 
by  all  the  judges,  that  a  tenant  in  tail  could  not  be  seised  to  a 
use,  either  expressed  or  implied.  1.  (Not  to  an  implied  use ;) 
because  the  tenure  creates  a  consideration.  2.  (Nor  to  an  ex- 
pressed use ;)  because  the  Statute  De  Donis  has  so  appro- 
priated and  fixed  the  estate  tail  to  the  donee,  and  the  *  heirs  *351 
of  his  body,  that  neither  he  nor  they  can  execute  the  use. 
Hence  Lord  Coke  has  said,  that  if  an  estate  was  made  to  a  man 
and  the  heirs  of  his  body,  either  to  the  use  of  another  and  his 
heirs,  or  the  use  of  himself  and  his  heirs,  this  limitation  of  use  was 
utterly  void.  (a)x 

13.  The  case  upon  which  Lord  Coke  and  Jenkins  founded 
their  opinion,  is  that  of  Cooper  v.  Franklin,  which  arose  in  12 
Jac.  I.f     But  if  this  case  be  considered  as   an  authority,  it  will 

(a)  Jenk.  Cent.  5  Ca.  1.     1  Inst.  19.  b. 


1  For  it  was  said  that  if  the  tenant  in  tail  should  execute  the  use,  the  issue  in  tail 
might  recover  the  land  back.,  per  forman  doni ;  and  that  the  words,  to  use  of  heirs. 
&c.,  in  such  case,  were  not  words  of  limitation,  but  referred  to  the  special  class  of  heirs 
already  mentioned  in  the  deed. 

[  t  This  case  is  thus  reported  by  Croke  : — John  Walter  being  seised  in  fee,  made  a 
feoffment  in  fee  to  Thomas  Walter,  habendum  to  him  and  the  heirs  of  his  body,  to  the 
use  of  him  and  his  heirs  and  assigns  forever.  The  question  was,  whether  Thomas 
Walter  had  an  estate  in  fee  tail  only,  or  in  fee  simple  determinable  upon  the  estate  tail. 
This  depended  upon  two  points: — 1st,  Whether  a  use  might  be  limited  upon  an  estate 
tail  before  or  after  the  Statute  of  Uses.  2dly,  Whether  this  limitation  of  uses  to  Thomas 
Walter  and  his  heirs  should  not  be  intended  the  same  uses,  being  to  the  feoffee  himself, 
and  to  the  same  heirs,  as  it  was  in  the  habendum.  Croke  reports  the  case  to  have  been 
adjourned ;  but  that  the  opinion  of  the  Court  upon  the  argument  inclined  that  he  was 
tenant  in  tail ;  and  that  the  limitation  of  the  use  out  of  the  estate  tail  was  void,  as  well 
after  the  Statute  of  Uses  as  before  ;  for  the  statute  never  intended  to  execute  any  use 
but  that  which  might  be  lawfully  compelled  to  be  executed  before  the  statute;  but  this 
could  not  be  of  an  estate  tail,  for  the  Chancery  could  not  compel  a  tenant  in  tail,  before 
the  statute,  to  execute  the  estate  ;  so  the  statute  did  not  execute  it  then.  Cro.  Jac.  400. 
Bulstrode  reports  a  second  argument  upon  this  case,  together  with  the  judgment  of  the 
Court ;  which  was,  that  Thomas  Walter  took  an  estate  tail,  because  a  tenant  in  tail 
could  not  be  seised  to  a  use.  3  Bulst.  184  ;  Tr.  13,  Jac.  1 ;  Pasch.  14,  Jac.  1.  Godbolt 
reports  the  case  to  have  arisen  upon  a  limitation  to  one  and  the  heirs  of  his  body, 
habendum  to  the  donee,  to  the  use  of  him,  his  heirs,  and  assigns  forever;  and  that  two 
points  were  resolved, — 1st,  That  the  limitation  in  the  habendum  did  not  increase  or  alter 
the  estate  given  in  the  premises  of  the  deed;  2dly,  That  a  tenant  in  tail  might  stand 


320  Title  XL     Use.     Ch.  III.  s.  13—15. 

only  prove  that  a  tenant  in  tail  cannot  be  seised  to  a  use  in  fee.f 
But  that  a  tenant  in  tail  may  be  seised  to  a  use,  co-extensive 
with  his  estate,  is  a  doctrine  which  it  would  now  be  extremely 
dangerous  to  controvert-.  And  Lord  Bacon  expressly  says,  that 
a  tenant  in  tail  may  be  seised  to  a  use.  "  If  I  give  land  in  tail 
by  deed,  since  the  statute,  to  A,  to  the  use  of  B  and  his  heirs, 
B  hath  a  fee  simple  determinable  upon  the  death  of  A  without 
issue ;  and  like  law,  though  doubtful,  before  the  statute  was ; 
for  the  chief  reason  that  bred  the  doubt  before  the  statute  was, 
because  tenant  in  tail  could  not  execute  an  estate  without  wrong ; 
but  that,  since  the  statute,  is  quite  taken  away ;  because  the 
statute  saveth  no  right  of  entail,  as  the  statute  of  1  Richard  III. 
did."   (a) 

14.  In  Seymour's  case,  10  Jac.  I.,  where  a  tenant  in  tail  bar- 
gained and  sold  his  estate  tail  to  a  stranger  in  fee,  it  was  unani- 
mously resolved  by  the  Court  of  K.  B.  that  the  bargainee  took 
an  estate  to  him  and  his  hens,  determinable  upon  the  death  of 
the  tenant  in  tail,  (b) 

15.  It  may,  therefore,  be  now  laid  down  as  an  undoubted 
principle  of  law,  that  a  tenant  in  tail  may  be  seised  to  a  use,  even 
in  fee  ;  and  that  such  use  will  be  good  against  the  tenant  in  tail 
himself ;  for  as  tenants  in  tail  have,  ever  since  the  time  of  Lord 
Coke,  been  in  the  practice  of  transferring  their  estates  to  the 
persons  who  were  to  be  tenants  to  the  precipe  in  common  re- 
coveries, in  fee  simple,  by  conveyances  derived  from  the  Statute 
of  Uses,  if  it  were  established  that  a  tenant  in  tail  cannot  be 
seised  to  a  use,  the  consequence  would  be,  that  almost  all  the 
common  recoveries  which  have  been  suffered  for  the  last  two 

(a)  Bac.  Read.  57.  (J)  lOJRep.  95.    Plowd.  557.     Tit.  32.  c.  9. 


seised  to  a  use  expressed,  but  such  use  could  not  be  averred.  Godb.  269.  The  same 
case  is  also  reported  by  Moor  by  the  name  of  Carrier  v.  Franklin,  where  the  Court 
appears  to  have  considered  it  as  a  question  of  construction ;  and  held  that  the  feoffee 
only  took  an  estate  tail,  because  the  use  to  him  and  his  heirs,  immediately  succeeding 
the  habendum,  must  be  construed  to  mean  the  same  kind  of  heirs  to  whom  the  estate  had 
been  already  limited, — namely,  the  heirs  of  the  body  of  the  feoffee.  Moor,  84S,  pi. 
1152.] 

[  t  The  case  of  Cooper  v.  Franklin  was  simply  one  of  construction,  it  is  no  author- 
ity that  a  tenant  in  tail  cannot  stand  seised  to  the  use  of  another ;  for  there,  the  seisin 
and  the  use  were  limited  to  the  same  person,  (Thomas  Walter,)  so  that  no  use  could 
arise  under  the  statute,  which  requires  that  one  or  more  persons  should  be  seised  to  the 
use  of  some  other  person  or  persons,  &c] 


Title  XL     Use.     Ch.  III.  s.  15—19.  321 

centuries   would   be   void  for   want  of   a   good   tenant  to  the 
praecipe* 

*16.  A  tenant  for  life  may  also  be  seised  to  a  use;     *353 
but  such  use  will  determine,  together  with  the  legal  es- 
tate, which  is  transferred  to  it  by  the  statute  upon  the  death  of 
the  tenant  for  life ;  for  a  cestui  que  use  cannot  have  an  estate  in 
the  use  of  greater  extent  than  the  seisin  out  of  which  it  is  raised. 

17.  In  2  &  3  Eliz.  this  case  was  moved : — Lands  were  given 
to  two  persons  for  their  lives,  and  the  life  of  the  survivor  of  them, 
to  the  use  of  A  B  for  his  life.  The  two  donees  to  uses  died; 
and  the  question  was,  whether  the  estate  to  A  B  was  determined. 
The  Court  thought  it  was  determined ;  because  the  estate  on 
which  the  use  was  created  and  raised  was  gone,    (a) 

18.  It  follows  from  this  case,  which  is  cited  and  admitted  to  be 
good  law  in  Bulstrode's  report  of  the  case  of  Cowper  v.  Franklyn, 
and  also  in  a  case  reported  by  Croke  ;  that  all-  persons  having  a 
legal  estate  of  freehold  may  be  seised  to  a  use.  If  the  use  is 
greater  than  the  estate  out  of  which  it  is  limited,  it  will  cease 
upon  the  determination  of  that  estate,  but  will  be  good  in  the 
mean  time,  (b) 

19.  With  respect  to  the  different  kinds  of  property  whereof  a 
person  may  be  seised  to  the  use  of  another ;  the  words  of  the 
statute  are, — "  Honors,  castles,  manors,  lands,  tenements,  rents, 
services,  reversions,  remainders,  or  other  hereditaments,"  which 
comprehends  every  species  of  real  property,  in  possession,  re- 
mainder, or  reversion.  Therefore,  not  only  corporeal  heredita- 
ments, but  also  incorporeal  ones,  such  as  advowsons,  tithes, 
rents,  &c,  are  within  this  statute.  Nothing,  however,  can  be 
conveyed  to  uses  but  that  of  which  a  person  is  seised  or  to  which 
he  is  entitled  at  the  time  ;  for  in  law  every  disposal  supposes 
a  precedent  property.  No  person  can,  therefore,  convey  a  use  in 
land,  of  which  he  is  not  seised  in  possession,  or  to  which  he  is 
not  entitled  in  remainder  or  reversion,  when  the  conveyance  is 
made,  (c)  1 

(a)  Dyer,  18G.  a.  pi.  1.     Crawley's  case,  2  And.  130. 

(b)  Cro.  Car.  231.     Norton  v.  Frecker,  1  Atk.  523. 

(c)  (1  McCord,  Ch.  R.  23!).)     Cro,  Eliz.  401.    22  Vin.  Ab.  217. 

1  The  interest  of  a  mortgagee,  though  generally  a  legal  seisin  as  against  the  mort- 
gagor, is  not  capable  of  being  devised  to  uses,  so  as  to  be  executed  by  the  statute,  the 
debt  being  regarded  in  law  as  the  principal  thing,  and  the  mortgage  only  as  a  lien  to 
secure  the  payment.     Galliers  v.  Moss,  9  B.  &  C.  267  ;  Merrill  v.  Brown,  12  Pick.  216. 


322  Title  XL     Use.     Ch.  III.  s.  20—24. 

20.  Lord  Bacon  says  the  word  hereditament,  in  the  Statute  of 
Uses,  is  to  be  understood  of  those  things  whereof  an  inheritance 
is  in  esse  ;  yet  that  a  grant  of  a  rent  charge  de  novo,  for  life,  to  a 
use,  was  good  enough;  although  there  were  no  inheritance  in 
being  of  the  rent.  It  should,  however,  be  observed  that,  in  this 
case,  there  is  a  seisin   of  the  land  out  of  which  the  rent  is 

granted,  (a) 
354*  *21.  Copyhold  estates  are  not,  however,  comprised  in 
the  Statute  of  Uses ;  because  a  transmutation  of  possession, 
by  the  sole  operation  of  the  statute,  without  the  concurrence  or 
permission  of  the  lord,  would  be  an  infringement  of  his  rights, 
and  tend  to  his  prejudice,  (b) 

22.  The  second  circumstance  necessary  to  the  execution  of  a 
use  by  this  statute  is,  that  there  must  be  a  cestui  que  use  in  esse. 
If,  therefore,  a  use  be  limited  to  a  person  not  in  esse,  or  to  a  per- 
son uncertain,  the  statute  can  have  no  operation.1  But  by  the 
words  of  the  statute  a  cestui  que  use  may  be  entitled  to  an  estate 
in  fee  simple,  or  fee  tail,  term  for  life,  or  years  or  otherwise,  or  in 
remainder  or  reversion. 

23.  With  respect  to  those  who  may  be  cestuis  que  use,  all  per- 
sons who  are  capable  of  taking'  lands  by  any  common  law  con- 
veyance, may  also  have  a  use  limited  to  them.  By  the  words  of 
the  statute,  corporations  may  be  cestuis  que  use.  And  Lord 
Bacon  says  the  king  may  have  a  use  limited  to  him  ;  but  it  be- 
hoveth  both  the  declaration  of  the  use,  and  the  conveyance 
itself,  to  be  by  matter  of  record  ;  because  the  king's  title  is  com- 
pounded of  both,  (c) 

24.  Although  a  man  cannot,  by  any  conveyance  at  common 
law,  limit  an  estate  to  his  wife,2  yet  he  might  have  made  a  feoff- 
ment to  her  use,  or  a  covenant  with  another  to  stand   seised  to 

(a)  Bac.  Read.  43.  (6)  Co.  Cop.  s.  54.     Gilb.  Ten.  182.     Cowp.  R.  709. 

(c)  Bac.  Read.  60. 

1  That  is,  it  cannot  operate  until  the  cestui  que  use  comes  in  esse.  See  post,  tit.  16, 
ch.  5  ;  2  Bl.  Coram.  334.  Thus,  where  a  grant  is  made  to  individuals  for  the  use  of  a 
church,  which,  at  the  time,  is  not  incorporated,  the  grantees  stand  seised  to  the  use 
until  the  church  receives  a  corporate  existence ;  and  then  the  statute  executes  the  use, 
and  the  estate  vests  in  the  church.  Reformed  Dutch  Church  v.  Veeder,  4  Wend.  494. 
And  see  Shapleigh  v.  Pilsbury,  1  Greenl.  271 ;  Ashurst  v.  Given,  5  Watts  &  Serg.  323 ; 
Roy  v.  Garnett,  2  Wash.  9,  35.     [Ante.  tit.  XI.  ch.  2,  §  16,  note,  *  340.] 

2  See  Martin  v.  Martin,  1  Greenl.  394.  Equity  will  uphold  such  a  conveyance. 
Wallingford  v.  Allen,  10  Peters,  R.  !>83.     Post,  tit.  32,  ch.  2,  §  33. 


Title  XL     Use.     Ch.  III.  s.  24—27.  323 

her  use.     And  a  use  now  raised  by  a  man  to  his  wife  will  be 
executed  by  the  statute,  (a) 

25.  The  cestui  que  use  must,  in  general,  be  a  different  person 
from  him  who  is  seised  to  a  use ;  for  the  words  of  the  statute 
are, — "  Where  any  person  or  persons  stand  or  be  seised,  &c,  to 
the  use,  confidence,  or  trust,  of  any  other  person  or  persons,"  &c. 
And  Lord  Bacon  says, — "  The  whole  scope  of  the  statute  was  to 
remit  the  common  law,  and  never  to  intermeddle  where  the  com- 
mon law  executed  an  estate.  Therefore  the  common  law  ought 
to  be  expounded,  that  where  the  party  seised  to  the  use,  and  the 
cestui  que  use,  is  one  person,  he  never  taketh  by  the  statute, 
except  there  be  a  direct  impossibility  or  impertinency  for  the  use 
to  take  effect  by  the  common  law."  (b) 

26.*  Thus,  where  lands  were  given  to  a  man  and  his  wife, 
habendum  to  the  said  husband  and  wife,  to  the  use  of  them  and 
the  heirs  of  their  two  bodies  ;  and  for  default  of  such  issue,  to 
the  use  of  A  B ;  the  question  was,  whether  the  husband 
and  *  wife  had  an  estate  tail,  or  only  an  estate  for  their  *  355 
lives.  It  was  adjudged  that  they  took  an  estate  tail. 
Upon  a  writ  of  error  in  the  King's  Bench,  it  was  argued  that 
the  estate  out  of  which  the  use  arose  was  but  for  their  lives,  con- 
sequently the  use  could  not  be  limited  for  a  larger  estate.  But 
Croke,  Jones,  and  Whitlock,  were  of  opinion,  that  there  was  a 
difference  where  an  estate  was  limited  to  one,  and  the  use  to 
another ;  there  the  use  could  not  be  more  than  the  estate  out  of 
which  it  was  derived.  That  it  was  otherwise  where  the  limita- 
tion was  to  two  persons,  habendum  to  them,  to  the  use  of  them 
and  the  heirs  of  their  bodies  ;  this  was  no  limitation  of  the  use, 
nor  was  the  use  to  be  executed  by  the  statute,  but  they  took  by 
the  common  law.  (c) 

27.  The  same  point  arose  in  the  subsequent  term,  in  a  writ  of 
error  from  a  judgment  given  in  Wales.  The  Court  held  the 
limitation  in  the  habendum,  to  the  use  of  the  grantees  and  the 
heirs  of  their  bodies,  to  be  as  a  limitation  of  the  land  itself, 
being  all  to  one  person ;  as  if  it  had  been  said,  habendum  to 
them  and  to  the  heirs  of  their  bodies  ;  and  not  like  the  case  in 
Dyer,  186.  For  true  it  was,  when  the  estate  was  limited  to  one 
or  two,  to  the  use  of  others  and  their  heirs,  the  first   estate  was 

(a)  1  Inst.  112.  a. 

(b)  (Jackson  v.  Myers,  3  Johns.  388.     Jackson  v.  Cary,  1G  Johns.  302.)     Bac.  Read.  G3. 

(c)  Jenkins  v.  Young,  Cro.  Car.  230.    Dyer,  ISC.  a.  n. 


324  Title  XL     Use.     Ch.  III.  s.  27—28. 

not  enlarged  by  this  implication,  and  the  use  could  not  pass  a 
greater  estate.  But  here,  when  the  grant  and  habendum  con- 
veyed the  estate,  and  the  limitation  of  the  use  was  to  the  same 
person,  that  showed  the  intent  of  the  parties,  and  was  a  good 
limitation  of  the  estate ;  for  it  was  not  an  use  divided  from  the 
estate,  as  where  it  was  limited  to  a  stranger,  but  the  use  and 
estate  went  together ;  wherefore  it  was  all  one  as  if  the  limita- 
tion had  been  to  them  and  the  heirs  of  their  bodies.  Sir  "Wil- 
liam Jones  said  he  knew  many  conveyances  had  been  made  in 
this  manner,  and  twice  brought  in  question,  and  adjudged  to  be 
an  estate  tail,  (a) 

28.  It  was  held  by  Holt,  C.  J.,  and  Powell,  in  a  subsequent 
case,  that  when  a  fine  was  levied,  or  a  feoffment  made,  to  a  ntan 
and  his  heirs,  the  estate  was  in  the  cognizee  or  feoffee,  not  fts'an 
use,  but  by  the  common  law ;  and  might  be  averred  to  be  so. 
This  doctrine  is  most  ably  discussed  by  Mr.  Booth,  in  an  opinion 
on  the  following  case  : — An  estate  was  conveyed,  by  lease  and 
release,  to  D.,  C,  and  S.,  and  their  heirs,  to  hold  unto  the  said 
D.,  C,  and  S.,  for  and  during  the  natural  lives  of  them  and  the 

survivor  and  survivors  of  them.  The  question  was  whether 
356  *   they  *took  by  the  common   law,  or  by  the  Statute  of 

Uses.  As  to  this  point,  Mr.  Booth  says, — "  We  will  now 
return  to  the  words  of  the  habendum  in  the  release ;  taking  the 
words,  '  to  the  use.'  The  habendum  stands  literally  thus  :  to  hold 
unto  the  said  D.  and  his  companions,  their  heirs  and  assigns, 
to  the  only  proper  use  and  behoof  of  the  said  D.  and  his  com- 
panions, their  heirs  and  assigns,  for  and  during  the  natural  lives 
of  the  said  D.  and  his  companions,  and  the  life  and  lives  of  the 
survivor  and  survivors  of  them.  Here  you  observe  the  use  limited 
is  not  limited  to  any  person  different  from  the  person  to  whom 
the  estate  is  granted.  The  habendum  is  to  D.  and  his  com- 
panions, and  the  use  is  limited  to  D.  and  his  companions ;  so  that 
the  estate  and  the  use  are  both  to  one  and  the  same  person  ;  and 
therefore,  this  cannot  be  a  statute  use,  for  the  seisin  doth  not  go 
or  belong  to  one  person,  and  the  use  to  another  person  ;  whereas 
the  statute  requires  that  there  should  be  a  standing  seized  by 
some  third  person  or  persons  to  the  use  of  some  other  person. 
And  that  case  of  Jenkins  v.  Young  is  express,  that  where  the 
use  is  not  divided  from  the  estate,  and  the  use  and  the  estate 

(«)  Meredith  v.  Jones,  Cro.  Car.  2U.TAnte,  s.  2G. 


Title  XL     Use.     Ch.  III.  s.  28—29.  325 

go  together,  there  it  amounts  only  to  a  limitation  of  the  estate, 
and,  consequently,  is  not  a  statute  use,  but  only  a  common-law 
use.  And,  if  at  this  day,  a  man  should  enfeoff  I.  S.  to  hold  to 
the  said  I.  S.  and  his  heirs,  to  the  use  and  behoof  of  the  said 
I.  S.  and  his  heirs  forever,  no  man  living  would  call  that  a 
statute  use  ;  for  the  words  would  import  no  more  than  the  words, 
'for  his  and  their  sole  benefit  and  behoof;'  and  would  only 
serve  to  show  in  how  ample  and  beneficial  a  manner  the  feoffee 
was  to  take  the  estate  limited  to  him  by  the  habendum;  which 
beino-  manifestly  an  estate  at  common  law,  could  not  also 
give  or  create  a  statute  use.  The  words  of  Lord  Holt,  in  the 
case  of  Lord  Altham  v.  Earl  of  Anglesey,  before  recited,  are 
directly  in  point.  In  like  manner  it  would  be,  if  there  were  a 
feoffment  to  a  man  and  his  assigns,  to  hold  to  that  man  and 
his  assigns,  to  the  only  use  and  behoof  of  him  and  his  assigns, 
during  his  life  ;  that  would  only  limit  an  estate  of  freehold  to 
him  for  his  life,  at  common  law ;  and  not  be  the  limitation  or 
creation  of  any  statute  use.  It  would  be  the  same  in  the  case  of 
a  feoffment  to  one  of  lands,  to  hold  to  the  feoffee  and  his  heirs, 
to  the  only  use  and  behoof  of  the  feoffee  and  his  heirs,  du- 
ring the  lives  of  A,  B,  C,  D,  and  *  twenty  other  persons.  *357 
There  the  words  to  the  use  and  behoof  would  pass  no 
statute  use,  or  pass  any  thing  distinct  from  the  estate ;  which 
estate  would  be  an  estate  at  common  law ;  and  the  words  to  the 
use  and  behoof  would  serve  only  to  show  the  amplitude  of  the 
estate  given  by  the  feoffment ;  and  that  the  feoffee  and  his  heirs 
were  to  take  the  same  for  his  and  their  own  benefit,  without 
return  of  any  service  whatever  to  the  donor."  (a) 

29.  There  are,  however,  some  cases  where  the  same  person  may 
be  seised  to  a  use,  and  also  cestui  que  use.  Thus,  if  a  man 
makes  a  feoffment  in  fee  to  one,  to  the  use  of  him  and  the  heirs 
of  his  body ;  in  this  case,  for  the  benefit  of  the  issue,  the  statute, 
according  to  the  limitation  of  the  uses,  directs  the  estate  vested 
in  him  by  the  common  law,  and  executes  the  same  in  himself, 
by  force  of  the  statute.  And  yet  the  same  is  out  of  the  words 
of  the  statute,  which  are,—"  To  the  use  of  any  other  person." 
And  here  he  is  seised  to  the  use  of  himself.  But  the  statute  has 
always  been  beneficially  expounded,  to  satisfy  the  intention  of 

(a)  Gilb.  Rep.  16,  17.  Booth's  Cases  and  Opin.  vol.  2.  281.  Ante,  s.  26.  Doc  V.  Passing- 
ham,  6  Bar.  and  Cress.  305. 

VOL.    I.  28 


326  Title   XL     Use.    Ch.  III.  s.  29—34. 

the  parties,  which  is  the  direction  of  the  use,  according  to  the 
rule  of  law.  (a) 

30.  So  if  a  man  seised  of  lands  in  fee  simple  covenants  with 
another,  that  he  and  his  heirs  will  stand  seised  of  the  same  land, 
to  the  use  of  himself  and  the  heirs  of  his  body ;  or  to  the  use 
of  himself  for  life,  the  remainder  over  in  fee  ;  in  that  case,  by 
the  operation  of  the  statute,  the  estate  which  he  hath  at  the  com- 
mon law  is  divested,  and  a  new  estate  vested  in  himself,  accord- 
ing to  the  limitation  of  the  use.  (b) 

31.  Lord  Bacon  says,  if  a  person  enfeoffs  I.  S.  to  the  use  of 
I.  D.  for  life,  remainder  to  the  use  of  I.  S.  for  life,  remainder  to 
the  use  of  I.  N.  in  fee,  I.  S.  is  in  by  the  statute ;  because  the 
law  will  not  admit  fractions  of  estates.  So  if  a  person  enfeoffs 
I.  S.  to  the  use  of  himself  and  a  stranger,  they  shall  both  be  in 
by  the  statute,  because  they  cannot  take  jointly,  taking  by 
several  titles.  Like  law,  if  I  enfeoff  a  bishop  and  his  heirs,  to 
the  use  of  himself  and  his  successors  ;  he  is  in  by  the  statute,  in 
right  of  his  see.  (c) 

32.  [The  Statute  27  Hen.  VIII.  c.  10,  enacts,  that  where  one 
or  more  persons  stand  seised  to  the  "  use,  trust,  or  confidence  of 
any  other  persons,  &c,  such  persons,  &c,  that  have  the  use, 
trust,  or  confidence,  shall  be  adjudged  in  the  lawful  seisin,  estate, 
and  possession,"  &c.     Hence,  it  follows,  that  where  lands  are 

•  conveyed  to  A  and  his  heirs,  in  trust  for  B  and  his  heirs, 
358  *  the  *  legal  estate  or  use  executes  in  B.  So  also  where  a 
limitation  is  to  A  and  his  heirs,  to  the  intent  and  purpose 
that  B  and  his  assigns  may  receive  and  take  a  rent-charge  for  his 
life,  or  that  he  and  his  assigns  may  receive  the  rents  and  profits 
during  his  life,  in  the  one  case  he  takes  the  legal  estate  for  life, 
and  in  the  other  a  legal  rent-charge.]   (d) 

33.  The  third  circumstance  necessary  to  the  execution  of  a 
use  by  this  statute  is,  that  there  should  be  a  use  in  esse,  in  pos- 
session, remainder,  or  reversion.  And  this  use  may  either  be 
created  by  an  express  declaration,  or  may  result  to  the  original 
owner  of  the  estate,  or  arise  from  an  implication  of  law.  (e) 

34.  When  these  three  circumstances  concur,  the  possession 
and  legal  estate  of  the  lands,  out  of  which  the  use  was  created, 

(a)  Bac.  Bead.  63.     13  Eep.  56.     (1  Sand.  Uses,  89.)      (6)  13  Eep.  56.      (c)  Bac.  Eead.  64. 

(d)  Ante,  s,  3.  Bac.  Uses,  47.  Eure  v.  Howard,  Pre.  Cha.  318.  345.  Broughton  v.  Lang- 
ley,  2  Salk.  679.    Eight  v.  Smith,  12  East,  454.   Hummerston's  case,  Dyer,  166,  a.  note  (9.) 

(e)  1  Eep.  126.  a.    Infra,  c.  4. 


Title   XL     Use.     Ch.   III.    s.   34—38.  327 

are  immediately  taken  from  the  feoffee  to  uses,  and  transferred  by 
the  mere  force  of  the  statute  to  the  cestui  que  use.  And  the  seisin 
and  possession  thus  transferred  are  not  a  seisin  and  possession  in 
law  only,  but  an  actual  seisin  and  possession  in  fact ;  not  a  mere 
title  to  enter  upon  the  land,  but  an  actual  estate,  (a) 

35.  Lord  Coke  appears  to  have  been  of  opinion,  that  by  a  con- 
veyance to  uses,  executed  by  the  statute,  only  a  freehold  in  law 
passed.  And  others  have  said  that  the  statute  only  transfers  a 
civil  seisin,  it  being  impossible  for  an  act  of  parliament  to  give 
an  actual  seisin  ;  therefore  that  an  entry  is  necessary  to  complete 
the  seisin.  It  has,  however,  been  found  that  the  admission  of 
this  principle  would  be  attended  with  dangerous  consequences  ; 
it  is,  therefore,  now  held  that  the  statute  transfers  the  actual 
possession ;  a  construction  fully  warranted  by  the  words  of  the 
statute,  which  are, — "  every  person  having  a  use  shall  be  in  lawful 
seisin,  estate,  and  possession,  to  all  intents,  constructions,  and 
purposes,  in  the  law."  (h) 

36.  The  third  section  of  the  statute  contains  a  saving  "  to  all 
and  singular  those  persons,  and  to  their  heirs,  which  were  or 
thereafter  should  be  seised  to  any  use,  all  such  former  right,  title, 
entry,  interest,  possession,  rents,  customs,  services,  and  action,  as 
they  or  any  of  them  might  have,  to  his  and  their  own  proper  use, 
in  or  to  any  manors,  lands,  tenements,  rents,  or  hereditaments, 
whereof  they  were,  or  thereafter  should  be,  seised  to  any  other 
use  ; "  as  if  the  said  act  had  not  been  made.* 

37.  In  consequence  of  this  clause,  no  term  for  years  or  other 
interest  whereof  a  person,  to  whom  lands  are  conveyed 

to  uses,  *  is  possessed  in  his  own  right,  will  be  merged  *  359 
or  destroyed  by  such  conveyance,  (c) 

38.  A  husband  being  seised  in  fee,  made  a  lease  to  O.  and  S. 
in  secret  confidence,  for  the  preferment  of  his  wife.  Afterwards 
he  made  a  feoffment  to  O.  and  others,  of  the  same  lands  to  other 
uses.  It  was  decreed  in  the  Court  of  Wards,  by  the  advice  of 
Wray,  Anderson,  and  Manwood,  that  the  term  was  not  extin- 
guished by  the  feoffment,  by  reason  of  the  proviso  ;  and  because 
O.  had  the  lease  to  his  own  use,  it  was  not  extinguished  by  the 
feoffment,  which  he  took  to  the  use  of  another,  (d) 

(a)  B;ic.  Bead.  40,    Cro.  Eliz.  46. 

lb)  1  Inst.  266.  b,  Gilb.  Uses,  230.'  Barker  v.  Keate,  2  Mod.  249.  Tit.  32.  c.  11.  (Duvall 
v.  Bibb,  3  Call.  3G2.) 

(c)  Vide  Infra,  tit.  39.  (d)  Cheyney's  case,  Moo.  190.    2  And.  192. 


328  Title  XL     Use.     Ch.  III.  s.  39—41. 

39.  A  demised  lands  to  B  for  ninety-nine  years ;  afterwards  A, 
by  bargain  and  sale  enrolled,  and  fine,  conveyed  the  same  lands 
to  B  and  others,  and  their  heirs,  to  the  use  of  them  and  their 
heirs,  to  the  intent  that  a  common  recovery  should  be  had  and 
suffered  against  them,  with  voucher  of  the  lessor,  to  the  use  of  a 
stranger ;  all  which  was  done  accordingly.  The  question  was, 
whether  the  term  for  years  was  merged.  And  it  was  resolved 
that  the  term  still  subsisted  ;  for  although  it  was  merged  by  the 
union  of  the  estates  till  the  recovery  was  suffered,  yet  when  that 
was  done,  the  uses  thereof  being  guided  by  the  bargain  and  sale, 
it  was  the  same  as  if  there  had  been  no  conveyance ;  it  being 
within  the  equity  and  intent  of  the  saving  in  the  third  section  of 
the  Statute  of  Uses ;  for  the  intention  of  that  statute  was  not  to 
destroy  prior  estates,  but  to  preserve  them.  It  was  also  agreed 
by  the  whole  Court,  that  if  a  fine  or  feoffment  had  been  levied 
or  made  to  the  lessee  for  years,  his  term  would  not  have  been 
thereby  extinguished.  An  objection  was  made  that  the  bargain 
and  sale,  and  fine,  were  to  the  use  of  the  lessee  for  years,  other- 
wise he  could  not  have  been  tenant  to  the  freehold ;  therefore  the 
savins  in  the  Statute  of  Uses  did  not  extend  to  this  case ;  but  it 
was  answered  and  resolved,  for  the  former  reasons,  that  the  term 
was  saved  by  the  equity  of  the  statute,  (a) 

40.  The  saving  in  the  Statute  of  Uses  extends  to  those  cases 
where  the  inheritance  is  conveyed  by  lease  and  release. 

41.  Cook  let  to  Fountain  for  ninety-nine  years ;  two  years 
after,  Cook  conveyed  the  inheritance,  by  lease  and  release,  to 
Fountain  and  another,  to  the  use  of  Cook  and  the  heirs  of  his 
body,  with  divers  remainders  over.  The  question  was,  wiiether, 
by  this  conveyance,  the  lease  for  ninety-nine  years  wTas  merged 

and  destroyed,  in  all  or  in  part.  First,  it  was  agreed  that, 
360  *     if  such  conveyance  to  uses  had  been  by  *  fine  or  feoffment, 

it  would  not  have  been  destroyed,  but  would  have  been 
preserved  by  the  saving  in  the  Statute  of  Uses.  So  likewise  it 
was  admitted  that,  if  there  had  been  no  lease  for  a  year,  but  the 
release  had  been  immediate  to  the  lessee  for  ninety-nine  years, 
to  such  uses,  in  this  case  also  the  lease  for  ninety-nine  years  had 
been  preserved  by  force  of  that  statute ;  but  here  being  a  lease 
for  a  year  precedent,  it  was  argued  that  this  was  to  the  use  of 

(a)  Ferrers  v.  Fermor,  Cro.  Jac.  643.    1  Vent.  195.    1  Mod.  107. 


Title  XL     Use.     Ch.  III.  s.  41.  329 

the  lessee,  and  then  by  acceptance  thereof,  he  admitted  the  les- 
sor's power  to  make  such  lease ;  and  by  consequence  before  the 
release  to  the  other  uses  came  to  take  place,  then  the  release 
after  could  not  revive  it ;  it  was  also  said,  that  though  this  were 
all  one  conveyance,  yet  it  differed  from  a  feoffment,  for  it  would 
not  purge  a  disseisin,  nor  make  a  discontinuance ;  that  if,  before 
the  release,  the  lessee  granted  a  rent-charge  or  made  a  lease  for 
half  a  year,  and  then  a  release  was  made  to  him  and  his  heirs  to 
such  uses,  yet  he  who  had  the  inheritance  would  have  no  remedy 
to  avoid  these  charges  but  in  Chancery. 

On  the  other  side  it  was  argued,  that  this  was  no  merger  of 
the  ninety-nine  years'  term ;  or  if  it  were,  yet  for  no  more  than  a 
moiety;  for  the  reason  of  merger  and  extinguishment  was  not, 
as  had  been  argued,  the  party's  admittance  of  the  lessor's  power 
to  make  a  lease,  but  the  merger  was  effected  by  the  accession  of 
the  immediate  reversion  to  the  particular  estate;  therefore  a  new 
lease  by  the  lessor  to  his  lessee  was  not  a  merger  or  surrender  of 
the  first  term,  if  there  was  any  interposing  or  intermediate  term ; 
yet,  in  that  case,  the  lessee  admitted  the  lessor's  power  to  make 
the  lease  presently,  as  much  as  in  the  other.  Then  if  the  union 
and  accession  of  the  two  estates  were  the  cause  of  the  merger, 
the  quantum  of  the  thing  granted  would  be  the  measure  of  that 
merger ;  by  consequence,  the  first  lease  here  would  be  extin- 
guished, but  for  a  moiety  of  the  lands.  Secondly,  that  it  was 
not  extinguished  for  any  part,  for  the  term  was  saved  within  the 
letter,  or  at  least  within  the  equity  of  the  Statute  27  Hen.  VIII. 
c.  10,  s.  3 ;  for  the  intent  of  the  saving  therein  was  to  preserve 
the  balance  between  the  cestui  que  use  and  his  feoffees,  according 
to  the  rule  of  equity,  by  which  they  were  governed  before.  Now, 
suppose  that  Fountain  had  a  lease  for  ninety-nine  years  before 
this  statute,  and  that  Cook  had  desired  him  to  accept  a  feoffment 
to  his  use ;  without  doubt,  the  Chancery  would  not  have  com- 
pelled him  to  assign,  till  the  ninety-nine  years'  term  ex- 
pired. And  the  same  right  *  seemed  now  to  be  preserved  *  361 
by  the  saving;  for  the  words  were  general, — "All  that 
shall  be  seised  to  any  use,"  not  all  that  shall  be  seised  by  feoff- 
ment or  fine  ;  so  that  the  seisin  to  use  was  the  only  thing  the 
statute  regarded,  not  by  what  sort  of  conveyance ;  that  lease  and 
release  was  become  a  common  conveyance  ;  and  the  lease  being 

28* 


330  Title  XL     Use.    Ch.  III.  s.  41. 

expressly  said  to  be,  to  enable  the  lessee  to  accept  a  release  to 
other  uses,  should  not  be  construed  to  any  other  intent,  or  to  be 
to  his  own  use,  otherwise  than  to  enable  him  to  accept  such 
release.  Then  if  it  should  be  admitted  that  the  lease  for  ninety- 
nine  years  were  extinguished  by  the  lease  for  a  year,  yet  by  the 
release  it  was  revived ;  for  being  but  one  conveyance,  it  was 
within  the  equity  of  the  statute.  The  case  of  Ferrers  v.  Fermor 
was  stronger ;  and  yet  it  was  resolved  there,  that  though  the 
bargain  and  sale  had  destroyed  the  term  for  a  time,  yet  by  the 
recovery  it  was  revived ;  because  then  but  one  conveyance  ab 
initio;  so  here. 

No  judgment  appears  to  have  been  given ;  but  Lord  C.  B. 
Gilbert  says  it  seemed  reasonable  that  the  lease  for  ninety-nine 
years  should  not  be  merged,  or  at  least  but  for  a  moiety ;  and 
even  in  that  case,  equity  would  set  up  the  moiety,  or  the  whole 
term  again,  (a) 

(«)  Cook  v.  Fountain,  Bac.  Ab.  tit.  Lease,  E.     Vide,  tit.  32.  c.  11.    Ante,  s.  39. 


331 


CHAP.  IV. 


MODERN   DOCTRINE   OF   USES. 


Sect.     1.   Construction  of  the  Statute. 

3.  Contingent  Uses. 

4.  Uses  arising  on  the  Execu- 

tion of  Powers. 
8.   Conveyances  derived  from  the 
Statute  of  Uses. 
Whether  the  Statute  extends 

to  Devises. 
Resulting  Uses. 
32.    Uses  by  Implication. 
35.  No    Use   results   but   to    the 
Owner  of  the  Estate. 


13. 


16. 


Sect.  37.  Nor  against  the  intent  of  the 
Parties. 

41.  Which   may    be  proved    by 

Parol  Evidence. 

42.  Nor    which     is    inconsistent 

with  the  Estate  limited. 
47.  Nor  on  an  Estate   Tail,  for 
Life  or  Years. 

51.  Nor  on  a  Devise. 

52.  What  Use  results  to  a  Ten- 

ant in  Tail. 


Section  1.  When  the  Statute  of  Uses  first  became  a  subject 
of  discussion  in  the  courts  of  law,  it  was  held  by  the  judges  that 
no  uses  should  be  executed  by  that  statute,  which  were  limited 
against  the  rules  of  the  common  law.  For  it  appeared  from  the 
preamble  that  it  was  the  intent  of  the  makers  of  the  act  to  restore 
the  ancient  law,  and  to  extirpate  and  extinguish  such  subtle 
practised  feoffments,  fines,  recoveries,  abuses,  and  errors,  tending 
to  the  subversion  of  the  good  and  ancient  common  law  of  the 
land.  So  that  it  was  plain  this  act  was  never  intended  to  exe- 
.cute  any  use  which  was  limited  against  the  rules  of  the  common 
law ;  the  object  of  it  was  to  extinguish  and  extirpate,  not  the 
feoffment,  fine,  or  recovery,  for  these  were  laudable  and  good 
conveyances  of  lands  and  tenements,  as  in  effect  recited  in  the 
beginning  of  the  preamble ;  but  those  uses,  which  were  abuses 
and  errors,  therefore  mischievous,  because  they  were  against  the 
rules  of  the  common  law.  The  statute  was  a  law  of  restitution, — 
namely,  to  restore  the  good  ancient  common  law,  which 
was,  in  a  manner,  subverted  by  *  abusive  and  erroneous  *  363 
uses ;  not  to  give  more  privilege  to  the  execution  of  uses 
than  to  estates  which  were  executed  by  the  common  law.  (a)  ' 

(a)  1  Rep.  129.  b. 


'  A  modem  Use  may  be  defined  as  "  an  estate  of  right,  which  is  acquired  through 


332  Title  XL     Use.    Ch.  IV.  s.  2—5. 

2.  The  Courts  have  so  far  adhered  to  this  construction  of  the 
statute,  that  the  same  technical  words  of  limitation  are  now  re- 
quired in  the  creation  of  estates,  through  the  medium  of  uses,  as 
in  the  creation  of  estates  at  common  law.  But,  in  many  other 
instances,  this  doctrine  was  departed  from  ;  and  advantage  was 
taken  of  an  expression  in  the  Statute  of  Uses,  in  order  to  sup- 
port several  of  those  modifications  of  property  which  had  been 
allowed  by  the  Court  of  Chancery  in  declarations  of  uses,  when 
they  were  distinct  from  the  legal  estate.  («) 

3.  The  Statute  of  Uses  enacts  that  the  estate  of  the  feoffees  to 
uses  shall  be  vested  in  the  cestuis  que  use,  "  after  such  quality, 
manner,  form,  and  condition,  as  they  had  before  in  or  to  the  use, 
confidence,  or  trust,  that  was  in  them."  Now,  the  Court  of 
Chancery  having  permitted  a  limitation  of  a  use  in  fee  or  in  tail 
to  arise  in  futuro,  without  any  preceding  estate  of  freehold  to 
support  it;  and  also  that  a  use  might  change  from  one  person 
to  another,  by  matter  ex  post  facto,  though  the  first  use  were 
limited  in  fee ;  the  Courts  of  Law,  in  process  of  time,  admitted 
of  limitations  of  this  kind,  in  conveyances  to  uses  ;  and  held  that 
in  such  cases  the  statute  would  transfer  the  possession  to  the 
cestui  que  use  after  such  quality,  form,  and  condition,  as  he  had 
in  the  use.  (b)  f 

4.  By  the  rules  of  the  common  law,  no  restriction  or  qualifica- 
tion could  be  annexed  to  a  conveyance  of  lands,  except  a  con- 
dition. In  consequence  of  this  principle,  a  fine  or  feoffment, 
with  a  power  of  revocation  annexed  to  it,  was  void  at  common 
law  ;  because  the  fine  or  feoffment  transferred  the  whole  property 
and  right  of  disposal  to  the  cognizee  or  feoffee  ;  therefore  the 
power  of  revocation  being  repugnant  to  the  force  and  effect  of 
the  preceding  words,  was  void.  Besides,  the  admission  of  such 
a  clause  would  have  introduced  a  double  power,  vested  in  dif- 
ferent persons,  over  the  same  property ;  which  was  contrary  to 
the  rules  of  the  common  law.  (c) 

5.  We  have,  however,  seen  that  before  the  Statute  of  Uses,  if 

(a)  1  Rep.  87.  b.     1  Atk.  591.  (6)  Ante,  c.  2.  s.  37.  (c)  1  Inst.  237.  a. 

the  operation  of  the  Statute  of  27  Hen.  8,  c.  10 ;  and  which,  when  it  may  take 
effect  according  to  the  rules  of  the  common  law,  is  called  the  legal  estate  ;  and  when  it 
may  not,  is  denominated  a  Use,  with  a  term  descriptive  of  its  modification."  Cornish 
on  Uses,  p.  35. 

[  t  An  account  of  the  nature  of  these  limitations  will  be  given  in  Title  16.] 


Title  XL     Use.     Ch.  IV.  s.  5—7.  333 

a  feoffment  was  made  to  uses,  the  feoffor  might  reserve  a  power, 
either  to  himself,  or  to  some  other  person,  to  revoke  the 
uses  *  declared  on  the  feoffment,  and  to  appoint  the  *  364 
feoffees  to  stand  seised  to  other  uses.  The  principle  on 
which  uses  were  originally  founded  being,  that  the  feoffee  to  uses 
was  bound  in  conscience  to  pursue  the  directions  of  the  feoffor, 
this  obligation  was  equally  binding,  whether  the  agreement  was 
that  the  feoffor  should  receive  the  rents  and  profits  himself,  or 
some  stranger ;  or  whether  they  were  to  be  paid  in  such  manner 
as  the  feoffor,  or  any  other  person  to  whom  he  delegated  his 
power,  should  at  any  future  time  appoint,  (a) 

6.  Now,  as  the  Statute  of  Uses  vests  the  legal  estate  in  the 
cestui  que  use,  after  such  quality,  manner,  and  form,  as  he  had  in 
the  use  ;  the  Courts  of  Law  concluded  that  in  all  conveyances  to 
uses,  a  power  might  be  reserved  of  revoking  a  former  limitation  of 
a  use,  and  of  appointing  a  new  use  to  some  other  person,  (b)  f 

7.  If  a  person  conveys  his  estate,  by  lease  and  release,  to  trus- 

tee) Ante,  c.  2.  s.  38.  (b)  1  Inst.  237.  a. 

[  t  In  an  opinion  of  the  late  Mr.  Booth,  which  has  been  published  by  Mr.  Hilliard  at 
the  end  of  Sheppard's  Touchstone,  is  the  following  account  of  contingent  uses  and 
powers  : — "  By  the  old  law,  no  fee  simple  could  be  limited  upon  or  after  a  fee  simple  ; 
hut  since  the   Statute  of  Uses,  executory  fees  by  way  of  use  have  not  only  been 
allowed,  but   are   become   frequent,   in  all  conveyances  operating  by  way  of  trans- 
mutation of  possession.    The  uses  are  served  out  of  the  seisin  of  the  feoffees,  grantees, 
releasees,  &c.     In  all  future  or  executory  uses  there  is,  the  instant  they  come  in  esse,  a 
sufficient  degree  of  seisin  supposed  to  be  left  in  the  feoffees,  grantees,  &c,  to  knit  itself 
to  and  support  those  uses  ;  so  as  that  it  may  be  truly  said  the  feoffees  or  grantees  stand 
seised  to  those  uses  ;  and  then,  by  force  of  the  statute,  the  cestui  que  use  is  immediately 
put  into  the  actual  possession.     (This  observation  involves  the  doctrine  of  Scintilla 
Juris,  which  is  discussed  in  a  future  page,  Vol.  II.  tit.  16,  ch.  5,  6,  7,  &c.)     It  is  wholly 
immaterial  how,  or  by  what  means,  the  future  use  comes  in  esse;  whether  by  means  of 
some  event  provided  for,  in  case  it  happened  in  the  creation  of  the  uses,  which  event 
may  be  called  the  act  of  God  ;  or  by  means  of  some  work  performed  by  any  certain 
person,  for  which  provision  was  likewise  made  in  the  creation  of  the  uses,  which  may 
be  called  the  act  of  man.     In  either  case  the  statute  operates  the  same  way;  for  the 
instant  the  future  use  comes  in  esse,  either  by  the  act  of  God  or  the  act  of  man, 
the  statute  executes  the  possession  to  the  use,  and  the  *  cestui  que  use  is  deemed  *  365 
to  have  the  same  estate  in  the  land,  as  is  marked  out  in  the  use,  by  the  deed  that 
created  it.     When  the  use  arises  from  an  event  provided  for  by  the  deed,  it  is  called  a 
future,  a  contingent,  an  executory  use ;  when  it  arises  from  the  act  of  some  agent  or 
person  nominated  in  the  deed,  it  is  called  a  use  arising  from  the  execution  of  a  power. 
In  truth,  both  arc  future  or  contingent  uses,  till  the  act  is  done  ;  and  afterwards  they 
are,  by  the  operation  of  the  statute,  actual  estates.     But  till  done,  they  arc  in  suspense, 
the  one  depending  on  the  will  of  heaven,  whether  the  event  shall  happen  or  not ;  the 
other  on  the  will  of  man."] 


334  Title  XL     Use.     Ch.  IV.  s.  7—9. 

tees  and  their  heirs,  to  the  use  of  himself  for  life,  remainder  to 
his  first  and  other  sons  in  tail,  and  inserts  a  proviso  in  the  release 
that  it  shall  be  lawful  for  him,  at  any  future  time,  to  revoke  these 
uses,  and  to  declare  new  ones  ;  and  that  immediately  upon  such 
revocation  and  new  declaration,  the  trustees  shall  stand  seised  of 
the  lands  to  the  use  of  such  persons  as  the  settlor  shall  appoint ; 
this  is  a  power  of  revocation  and  appointment.  As  soon  as  it  is 
executed,  the  uses  originally  limited  cease,  and  a  new  use  imme- 
diately arises  to  the  person  named  in  the  appointment,  for  such 
estate  as  is  given  to  him  by  it ;  and  the  statute  transfers  the 
legal  estate  to  such  appointee,  who,  by  that  means,  acquires  the 
actual  seisin  and  possession.! 

8.  Lord  Bacon  says,  the  chief  object  of  the  Statute  of  Uses 
was  to  destroy  all  those  secret  conveyances  to  uses  which  had 
been  so  much  complained  of.  "  The  principal  inconvenience," 
(says  he,)  "  which  is  radix  malorum,  is  the  diverting  from  the 
grounds  and  principles  of  the  common  law,  by  inventing  a  mean 
to  transfer  lands  and  inheritances,  without  any  solemnity  or  act 
notorious  ;  so  as  the  whole  statute  is  to  be  expounded  strongly 
towards  the  extinguishment  of  all  conveyances,  whereby  the 
freehold  or  inheritance  may  pass,  without  any  new  confections  of 
deeds,  executions  of  estate,  or  entries."  It  is,  therefore,  some- 
what singular  that  this  statute,  instead  of  having  had  that  effect, 
has,  on  the  contrary,  given  rise  to  several  new  modes  of  trans- 
ferring lands,  unknown  to  the  simplicity  of  the  common  law,  and 

of  a  more  secret  nature  than  feoffments  to  uses  ;  so  that, 
366  *     *  notwithstanding  the  great  caution  with  which  this  stat- 
ute was  made,  it  has  not  answered  the  intention  of  the 
legislature,  (a) 

9.  Lord  Bacon,  has,  however,  clearly  proved,  that  the  inten- 
tion of  the  statute  was  only  to  destroy  the  estate  of  the  feoffee  to 
uses,  by  transferring  it  to  the  persons  who  were  entitled  to  the 
use;  and  not  to  destroy  the  form  of  the  conveyance  to  uses. 
I.  Because  the  words  of  the  statute  are, — "  Where  any  person  is 
seised,  or  hereafter  shall  be  seised  to  any  use,"  &c.     II.  In  the 

(«)  Bac.  Read.  33.     1  Atk.  501. 


[t  The  nature  of  revocations  and  appointments  to  uses  will  be  explained  hereafter. 
Tit.  32,  c.  13.] 


Title  XL     Use.     Ch.  IV.  s.  9—11.  335 

same  session  in  which  this  statute  was  made,  it  was  enacted, 
that  all  bargains  and  sales  to  uses  should  be  enrolled ;  which 
proved  the  intention  of  the  legislature,  to  leave  the  form  of  the 
conveyance,  with  the  addition  of  a  farther  ceremony.  III.  By 
the  twelfth  section  of  the  statute,  it  was  provided  that  the  king 
should  not  take  any  primer  seisin,  or  other  feudal  profits,  on  ac- 
count of  any  estate  which  should  be  executed  by  means  of  the 
statute,  till  the  1st  of  May,  1536  ;  but  that  he  should  take  the 
feudal  profits  for  all  uses,  which  should  become  executed  by  the 
statute  after  that  time,  (a) 

10.  But  whatever  might  have  been  the  intention  of  the  legis- 
lature in  passing  this  statute,  it  is  certain  that  it  has  given  rise 
to  several  new  sorts  of  conveyances,  which  operate  contrary  to 
the  rules  of  the  common  law ;  for  it  being  soon  observed  that 
there  was  nothing  in  the  statute  to  prevent  the  raising  of  uses, 
but  only  a  provision  that  when  a  use  was  raised,  the  possession 
of  the  land  should  be  transferred  to  such  use,  it  was  only  neces- 
sary to  raise  a  use,  and  the  legal  seisin  and  estate,  together  with 
the  actual  possession,  became  immediately  vested  in  the  cestui 
que  use,,  without  livery  of  seisin,  entry,  or  attornment,  (b) 

11.  In  consequence  of  this  doctrine,  it  became  customary  to 
raise  a  use  to  the  person  to  whom  the  lands  were  intended  to  be 
conveyed,  and  then  the  statute  transferred  the  possession  to  the 
cestui  que  use.  This  was  done  in  two  different  ways ;  first,  by  a 
conveyance  which  only  transferred  a  use,  and  which  is  said  to 
operate  without  any  transmutation  of  possession,  because  the 
alteration  of  the  legal  seisin  is  effected  by  the  mere  operation  of 
the  statute.  There  are  two  modes  of  conveyance  which  operate 
in  this  manner  ;  a  bargain  and  sale  to  uses,  and  a  covenant  to 
stand  seised  to  uses ;  of  which  an  account  will  be  given  here- 
after.! The  second  mode  of  conveying  lands  through  the 
medium  *  of  uses,  is  effected  in  the  following  manner :  —  *  367 
The  legal  estate  and  possession  is  transferred  by  a  feoff- 
ment, fine,  or  recovery,^  to  some  indifferent  person,  who  stands 
in  the  place  of  the  ancient  feoffee  to  uses  ;  ,a  deed  is  then  exe- 
cuted, reciting,  that  by  such  feoffment,  fine,  or  recovery,  the  lands 

(a)  Bac.  Read.  39.  (b)  Ante,  c.  3.  s.  34. 

— j — — 

[t  Tit.  32,  ch.  9  &  10.] 

[t  Before  the  recent  Stat.  3  &  4  Will.  4,  c.  74.  ] 


336  Title  XL     Use.     Ch.  IV.  s.  11—13. 

have  been  transferred  to  A  B,  and  declaring  that  such  feoffment, 
fine,  or  recovery,  shall  enure  and  operate,  and  that  the  feoffee, 
cognizee,  or  recoveror,  in  such  feoffment,  fine,  or  recovery,  shall 
be  seised  of  such  lands,  to  the  use  of  a  third  person.  Or  else  a 
deed  is  first  executed,  reciting  that  a  fine  or  recovery  is  intended 
to  be  levied  or  suffered,  or  covenanting  to  levy  a  fine  or  to  suffer 
a  recovery,  and  declaring  that  these  assurances,  when  completed, 
shall  enure  to  the  use  of  a  third  person. 

12.  In  both  these  cases  a  use  arises  out  of  the  seisin  of  the 
feoffee,  cognizee.  or  recoveror,  to  the  person  to  whom  such  use 
is  declared,  and  the  statute  immediately  transfers  to  that  use  the 
legal  estate  and  actual  possession.  These  latter  assurances  are 
said  to  operate  by  transmutation  of  possession,!  because  the 
legal  seisin  and  estate  is  first  transferred  by  some  common-law 
conveyance  or  assurance.  They  are  usually  called  deeds  to  lead 
or  declare  the  uses  of  a  fine  or  recovery  ;  and  will  be  treated  of 
hereafter,  (a) 

13.  As  the  Statute  of  Uses  preceded  the  Statute  of  Wills,  the 
former  has  been  said  not  to  extend  to  devises  to  uses.  It  is,  how- 
ever, observable,  that  the  words  of  that  statute  are, — "  Where  any 
person,  &c,  is  seised  to  the  use  of  any  other  person  by  reason  of 
any  bargain,  sale,  &c,  will,  or  otherwise."  Now,  though  at  the 
time  when  the  statute  was  made,  the  word  will  could  only  apply 

to  wills  of  lands  then  devisable  by  custom,  yet  when 
368  *     the  statute  *of  wills  passed,  the  word  will  in  the  Statute  of 

Uses  became  applicable  to  wills,  or  rather  to  devises,  of 
all  the  lands  over  which  a  testamentary  power  was  given. 

(a)  (See  tit.  32.  c.  9,  10.) 

[  t  To  the  fine,  feoffment,  and  recovery,  may  be  added  the  ordinary  conveyances  of 
Lease  and  Eelease.  and  Grant,  both  of  which  operate  by  transmutation  of  possession 
or  seisin  ;  the  author  treats  of  them  in  Vol.  IV.  title  Deed,  ch.  4,  s.  33,  and  ch.  11. 

The  student  is  referred  to  the  two  tables  in  the  following  note,  which  may  assist  him 
in  understanding  the  effect  of  the  Statute  of  Uses,  in  the  various  forms  of  conveyance 
which  do  and  which  do  not,  operate  by  transmutation  of  possession  or  seisin ;  the 
intention  being,  in  the  following  example,  (table  No.  1,)  that  under  each  of  these  modes 
of  conveyance,  the  seisin  should  be  transferred  to  A,  the  use  or  legal  estate  to  B,  and 
the  trust  estate  or  equitable  ownership  to  C,  so  that  they  may  take  the  same  interest, 
or  stand  in  the  same  character  in  each  conveyance. 

In  the  table  No.  2,  the  student  will  see  the  different  effects  of  the  statute  upon  the 
interests  of  the  persons  taking  under  a  limitation  to  A  and  his  heirs,  to  the  use  of  B 
and  his  heirs,  to  the  use  of  or  in  trust  for  C  and  his  heirs,  by  a  declaration  of  the  uses 


Title  XL     Use.      C!i.  IV.  s.  14. 


337 


*  14.  In  a  case  in  2  &  3  Phil,  and  Mary,  it  is  said  that     *369 
devises  of  land  in  use  have  been  common.     In  23  Eliz. 
it  was  agreed  by  the  Court  of  "Wards,  that  a  devise  might  be  to 
the  use  of  another  ;  and  Lord  Coke  is  there  reported  to  have  been 


of  a  fine  or  recovery,  by  a  feoffment,  lease  and  release,  grant,  bargain  and  sale,  cove- 
nant to  stand  seised,  and  an  appointment.] 

No.  1. 


In  order  to  give 

A.  the  seisin, 

B.  the  use  or  legal  C.  the  trust  estate, 
estate.                or  equitable 
ownership. 

In  a  Fine, 

A.  must  be  made 
Conuzee, 

B.                          JC 
Cestui-qui  use  by  |  Cestui-que  trust, 
the  deed  leading 
or  declaring  the! 
uses  of  the  fine. 

a 
_© 

O 

o 

a, 

s- 

o 

Recovery, 

Recoveror, 

the  same  of  the 
recovery. 

the  same  as  above. 

a 

'3 

DD 

Feoffment, 

Feoffee, 

Cestui-que  use. 

Cestui-que  trust. 

atation  o 
t  commo 

Lease  and   Re- 
lease, 

Releasee,  who  is  of 
course  the  lessee 
or  bargainee  for 
a  year. 

same. 

same. 

u 

ci 
S-. 

>> 

C 

Grant, 

Grantee, 

5ame. 

same. 

Open 

Bargain  and  ) 
Sale,            ] 

Bargainor, 

Bargainee. 

same. 

O 

a 
.2 

11 
a  aj 

is  o 
tsP4 

•°  o 

.5  •- 
2 '" 

Ph 
O 

o 

Covenant  to    ) 
stand  seised,  ) 

Covenantor, 

Covenantee  being 
cestui-qui  use. 

same. 

Appointment, 

The  Releasee, 
grantee,    &c.,   to 
uses  in  the  deed 
creating  the  power 
of  appointment. 

Appointee. 

same. 

VOL.  I. 


29 


338 


Title  XI.     Use.     Ch.  IV.  s.  14. 


of  opinion,  that  the  son  of  a  devisor  takes  by  descent,  when  the 
cestui  que  use,  to  whom  the  land  is  devised,  refuses  the  use ;  for 
the  devisee  cannot  take  it  to  his  own  use,  because,  if  the  use  be 
void,  the  devise  is  also  void.  In  the  case  of  Broughton  v.  Langley, 

which  will  be  stated  in  the  next  title,  it  was  agreed  that  a 
370  *     devise  may  be  *  to  the  use  of  another  ;  and  the  use  will  be 

executed,  if  the  intent  of  the  devisor  appear.  In  Gilbert's 
Uses,  it  is  also  said  that  a  devise  may  be  made  to  a  use.  (a) 


I 

k>.  2. 

To   A.   and   his    To  the  use  of  B. 
heirs.                 and  his  heirs. 

To  the  use  of,  or  in 
.  trust  for  C.  and 
his  heirs. 

Operating  by  transmutation  of  seisin  or  possession. 

In  a 

Fine 

Recov- 
ery.   . 

declared 
•    so  to 
enure. 

A.  will  take  the  ]B. 
use. 

nothing. 

C. 

the  equitable  fee. 

A.  will  take  the 
same  as  above. 

B. 

nothing. 

C. 

same  as  above. 

Feoffment. 

A.  will  take  the 
seisin. 

B. 

the  use. 

C. 
same  as  above. 

Lease  and  Re-  ) 
lease.           ) 

the  same 

as 

above. 

Grant. 

the  same 

as 

above. 

Bargain      and  ) 
Sale.           J 

A.  will  take  the 

use. 

B. 

nothing. 

C. 
the  equitable  fee. 

Not  operating  by  transmu- 
tation of  seisin   or  pos- 
session. 

Covenant      to  ) 
stand  seised.     ) 

the  same 

as 

above. 

Appointment. 

1 
the  same 

as 

above. 

[The  preceding  tables  were  inserted   by  the  Editor  in  his  edition  of 
Principles,  1831,  p.  233,  234.] 
(a)  Dyer,  127.  a.    E.  Hartop's  case,  1  Leon.  253.    Lutw.  823.    Gilb.  Uses,  162, 


Watkin's 


281. 


Title  XL     Use.     Ch.  IV.  s.  15—17.  339 

15.  In  the  case  of  an  immediate  devise  to  uses,  as  a  devise  to 
the  use  of  A  for  life,  remainder  to  the  use  of  B  in  tail,  it  is  ad- 
mitted that  the  remainder  cannot  take  effect  by  way  of  use, 
because  there  is  no  seisin  to  serve  the  use.  But  in  the  case  of  a 
devise  to  A  and  his  heirs,  to  the  use  of  B  for  life,  remainder  to 
the  first  and  other  sons  of  B  in  tail,  there  is  no  reason  why  the 
seisin  of  A  should  not  be  deemed  sufficient  to  support  the  uses 
to  the  sons  of  B.  (a)  f 

16.  Before  the  Statute  of  Uses,  if  a  person  had  conveyed  his 
lands  to  another,  without  any  consideration,  or  declaration  of  the 
uses  of  such  conveyance,  he  became  entitled  to  the  use  or  per- 
nancy of  the  profits  of  the  lands  thus  conveyed.  This  doctrine 
was  not  altered  by  that  statute  ;  and,  therefore,  it  became  an 
established  principle,  that  where  the  legal  seisin  and  possession 
of  lands  are  transferred  by  any  common-law  conveyance  or  assur- 
ance, and  no  use  is  expressly  declared,1  nor  any  considera- 
tion or  *  evidence  of  intent,  to  direct  the  use  ;  such  use  shall  *  371 
result  back  tb  the,  original  owner  of  the  estate ;  for  where 

there  is  neither  consideration,  nor  declaration  of  uses,  nor  any 
circumstance  to  show  the  intention  of  the  parties,  it  cannot  be 
supposed  that  the  estate  was  intended  to  be  given  away,  (b) 

17.  In  consequence  of  this  principle,  Lord  Coke  has  laid  it 

{a)  See  tit.  16.  c.  5.  (b)  Dyer,  186.  b.     11  Mod.  182. 

[fin  opposition  to  this  doctrine,  a  note  to  an  opinion  of  the  late  Mr.  Booth's  has 
been  published,— Collect.  Jur.  v.  1,  427,— in  which  it  is  said  that  the  Statute  of  Uses 
does  not  operate  on  a  devise  to  uses.  This  note  is  not  annexed  to  the  original  opinion, 
which  was  in  the  possession  of  the  late  Mr.  Billiard,  though  it  is  said  by  Mr.  Butler— 
1  Inst.  271,  b.  n.  1,  s.  3,  5 — to  be  annexed  to  two  copies  of  the  opinion  made  imme- 
diately under  the  eye  of  Mr.  Booth,  and  delivered  by  him  to  the  persons  in  whose 
custody  they  are,  and  also  in  a  copy  of  it  bequeathed  by  Mr.  Booth  to  Mr.  Holliday. 
Admitting  the  authenticity  of  this  note,  and  the  great  authority  to  which  Mr.  Booth's 
opinions  are  justly  entitled,  yet,  as  it  has  been  an  universal  practice  for  the  last  two 
centuries  to  devise  lands  to  trustees  and  their  heirs,  to  various  uses,  with  several  powers, 
in  the  same  words  as  are  used  in  declarations  of  uses  on  fines  and  recoveries,  it  would 
be  extremely  dangerous,  at  this  time,  to  question  the  operation  of  the  Statute  of  Uses 
in  such  cases.  In  the  construction  of  wills,  the  intention  of  the  testator  must  be  the 
guide,  and  it  is  now  well  settled,  that  if  it  be  apparent,  from  the  technical  penning  of 
the  devise,  that  the  testator  intended  to  bring  the  Statute  of  27  Henry  8,  ch.  10,  into 
operation,  effect  will  be  given  to  that  intention,  and  the  uses  will  be  executed  in  the 
will  as  if  they  were  limited  by  deed.  1  Vera.  79,  415  ;  2  Salk.  679  ;  2  Atk.  573  ;  2  P. 
Will.  134.] 

1  It  is  sufficient  that  the  use  be  declared,  though  no  consideration  be  expressed  in  the 
deed.     Sprague  v.  Woods,  4  Watts  &  Scrg.  192. 


340  Title  XL     Use.     Ch.  IV.  s.  17—20. 

down  as  a  rule,  —  "  That  so  much  of  the  use  as  the  owner  of 
the  land  does  not  dispose  of,  remains  in  him."  So  that  where  a 
person  seised  in  fee  simple '  levied  a  fine,  or  suffered  a  recovery, 
without  any  consideration,  or  declaration  of  the  uses  to  which  it 
should  enure,  the  use  resulted  back  to  himself ;  and  the  statute 
immediately  transferred  the  legal  estate  to  such  resulting  use ; 
by  which  means  he  was  seised  in  fee  simple  in  the  same  manner 
as  he  was  before.  If  any  particular  uses  were  declared,  so  much 
of  the  old  use  as  was  not  declared  to  be  vested  in  some  other 
persons,  resulted  back  to  the  original  owner,  (a) 

18.  Thus,  where  a  man  made  a  feoffment  to  the  use  of  such 
person  or  persons,  and  for  such  estate  and  estates,  as  he  should 
appoint  by  his  will ;  it  was  resolved  that  the  use  resulted  to  the 
feoffor  till  he  made  an  appointment,  (b) 

19.  So  where  a  person  made  a  feoffment  to  the  use  of  himself, 
and  his  intended  wife,  after  their  marriage ;  it  was  determined 
that  the  use  resulted  to  the  feoffor  and  his  heirs,  till  the  mar- 
riage, (c) 

20.  In  an  ejectment  tried  before  Lord  Chief  Baron  Parker, 
this  short  case  was  reserved  for  the  opinion  of  the  Court.  A  *B, 
being  in  possession  of  the  lands  in  question,  levied  a  fine  sur 
conusans  de  droit  come  ceo,  &c,  to  the  conusee  and  his  heirs, 
without  any  consideration  expressed ;  and  without  declaring  any 
use  thereof ;  nor  was  it  proved  that  the  conusee  was  ever  in  pos- 
session. So  that  the  single  question  was,  whether  the  fine 
should  enure  to  the  use  of  the  conusor,  or  to  that  of  the  conusee. 
After  two  arguments,  the  Court  gave  judgment  for  the  plaintiff, 
who  claimed  as  heir  of  the  conusor  ;  and  said,  that  in  the  case  of 
a  fine  come  ceo,  &c,  where  no  uses  were  declared,  whether  the 
conusor  were  in  possession,  or  the  fine  were  of  a  reversion,  it 
should  enure  to  the  old  uses,  and  the  conusor  should  be  in  of 
the  old  use.     That  in  the  case  of  a  recovery  suffered,  the  same 

should  enure  to  the  use  of  him  who  suffered  it,  (who  was 
372  *     *  commonly  the  vouchee,)  if  no  uses  were  declared.     So, 

in  this  case,  the  ancient  use  was  in  the  conusor  at  the 
time  of  levying  the  fine  ;  for  it  seemed  to  have  been  long  settled, 

(a)  1  Inst.  23.  a.  271.  a.     Dyer,  166.  a. 

(b)  Sir  E.  Clere's  case,  6  Eep.  17.  b.        (c)  Woodliffe  r.  Drury,  Cro.  Eliz.  439. 

1  Since  altered  in  England,  by  Stat.  3  &  4  Wm.  4,  c.  74. 


Title  XL     Use.     Ch.  IV.  s.  20—26.  341 

that  a  fine  without  any  consideration,  or  uses  thereof  declared, 
should  enure  to  the  ancient  use  in  whomsoever  it  was,  at  the 
time  of  levying  the  fine  ;  and  as  it  was  here  in  the  conusor,  at 
the  time,  the  judgment  must  be  for  the  plaintiff,  (a) 

21.  Where  a  husband  and  wife  levied  a  fine  of  the  wife's 
estate,  without  any  sufficient  declaration  of  uses,  it  was  held  that 
the  use  resulted  back  to  the  wife  only  ;  because  the  estate  in  the 
land  passed  only  from  her,  and  the  husband  joined  with  her  only 
for' conformity,  (b) 

22.  Where  a  person  levied  a  fine  of  his  estate  to  trustees,  to 
certain  uses,  and  did  not  declare  any  use  of  the  estate  during  his 
own  life,  it  would  result  to  himself. 

23.  A  fine  was  levied  to  the  use  of  trustees  for  700  years, 
remainder  to  other  trustees  for  300  years,  and  from  and  after 
the  death  of  the  cognizor,  to  the  use  of  his  son  for  life,  remainder 
to  the  first  and  other  sons  of  such  son  in  tail.  It  was  resolved 
by  the  Lord  Keeper,  after  consideration  had  with  all  the  Judges, 
and  a  case,  that  as  the  cognizor  had  not  limited  away  the 
freehold  to  any  person  during  his  life,  it  resulted  back  to  him- 
self, (c) 

24.  Archdale  Palmer,  in  consideration  of  the  marriage  of  his 
son,  settled  an  estate  to  the  use  of  his  son  for  life,  remainder  to 
his  intended  wife  for  life,  remainder  to  the  first  and  other  sons 
of  the  marriage  in  tail,  remainder  to  the  heirs  male  of  the  body 
of  Archdale  Palmer,  remainder  over.  It  was  resolved,  that  as 
the  limitations  to  the  son,  and  his  first  and  other  sons,  might 
determine  during  the  life  of  Archdale  Palmer,  a  use  resulted  to. 
him  for  life,  expectant  upon  the  determination  of  the  estates 
limited  to  his  son,  &c.  (d) 

25.  But  where  the  use  is  expressly  limited  away  during  the 
life  of  the  grantor,  no  use  can  result  to  him. 

26.  A  person,  in  consideration  of  marriage,  conveyed  lands  to 
trustees,  to  the  use  of  himself  and  his  heirs  till  the  marriage, 
then  to  the  use  of  his  intended  wife  for  life  for  her  jointure, 
remainder  to  trustees  and  their  heirs  during  the  life  of  the  hus- 
band, in  trust  to  support  contingent  remainders,  but  to  permit 

(a)  Armstrong  v.  Wholesey,  2  Wils.  R.  19. 

(b)  Beckwith's  case,  2  Rep.  58.  a.     Dyer,  146.  b. 

(c)  Penhay  v.  Hurrell,  2  Vern.  370.    2  Freem.  258. 

(d)  Wills  v.  Palmer,  2  Black.  R.  687.    Fearne,  Cont.  Rem.  45,  6th  edit. 

29* 


342  Title  XL     Use.     Ch.  IV.  s.  26—30. 

the  husband  to  receive  the  rents  and  profits  during  his 
373  *     life,  *  remainder  to  the  first  and  other  sons  of  the  marriage, 

in  tail  male,  remainder  to  the  heirs  male  of  the  husband 
by  his  then  intended  wife,  remainder  over.  It  was  resolved, 
that  no  use  resulted  to  the  husband,  because  there  was  an  express 
estate  limited  to  the  trustees  during  his  life,  (a) 

27.  The  use  will  result  according  to  the  estate  which  the  parties 
have  in  the  land.  Thus,  if  there  were  two  joint  tenants,  and 
they  levied  a  fine  without  any  declaration  of  uses,  the  use  should 
be  to  them  of  the  same  estate  as  they  before  had  in  the  land. 
So  if  A,  tenant  for  life,  and  B  in  remainder  or  reversion,  levied 
a  fine  generally,  the  use  should  be  to  A  for  life,  the  remainder 
or  reversion  to  B  in  fee.  For  each  granted  that  which  he  might 
lawfully  grant;  and  each  shall  have  the  use  which  the  law- 
vested  in  them,  according  to  the  estate  which  they  conveyed 
over.  So  if  A,  seised  in  fee  of  an  acre  of  land,  and  he  and  B 
levied  a  fine  of  it  to  another,  without  consideration,  the  use 
would  be  to  A  only  and  his  heirs;  for  a  use,  which  is  but  a 
trust  and  confidence,  and  a  thing  in  equity  and  conscience,  shall 
be,  by  operation  of  law,  to  him  who  in  truth  was  owner  of  the 
land,  without  having  regard  to  estoppels  or  conclusions,  which 
are  averse  from  truth  and  equity,  (b) 

28.  It  was  determined,  in  a  modern  case,  where  a  fine  was 
levied  by  a  tenant  for  life,  together  with  the  remainder-man  in 
tail,  and  the  reversioner  in  fee,  and  a  declaration  of  uses  was 
executed  by  the  tenant  for  life,  and  the  remainder-man  in  tail 
only,  that  the  use  of  the  reversion  in  fee  resulted  to  the  rever- 
sioner, (c) 

29.  It  is  somewhat  doubtful,  whether  in  the  case  of  a  lease 
and  release,  without  any  declaration  of  uses,  the  use  results  to 
the  releasor,  for  reasons  which  will  be  stated  when  that  mode  of 
conveyance  is  explained.  But  if  any  particular  use  is  declared 
on  a  lease  and  release,  the  residue  of  the  use  will  result  back  to 
the  releasor,  (d) 

30.  Where  the  same  use  is  limited  to  the  owner  of  the  estate, 
which  would  have  resulted  to  him  in  case  no  declaration  of  that 

(a)  Tippin  v.  Coson,  4  Mod.  380.     1  Ld.  Raym.  33.    (Comb.  313.) 
(6)  2  Rep.  58.  a. 

(c)  Roe  v.  Popham,  1  Doug.  Rep.  24. 

(d)  Vide  tit.  32.  c.  11. 


Title  XL     Use.     Ch.  IV.  5.  30—34.  343 

use  had  been  made,  the  declaration  is  void;  and  he  takes  it  as  a 
resulting;  use.  (a) 

31.  Anthony  Mitford,  being  seised  in  fee  of  the  estate  in  ques- 
tion, conveyed  the  same  to  the  use  of  his  eldest  son  and  his  wife, 
and  the  heirs  male   of  the  body  of  his  son,  remainder  to 

the  use  of  *  his  own  right  heirs.  It  was  resolved,  that  *  374 
the  use  limited  to  the  right  heirs  of  Mitford  was  the 
ancient  use,  which  was  never  out  of  him,  and  was,  in  fact,  a 
reversion  in  him  to  grant  or  charge ;  and  would  descend  from 
him  to  his  heir  if  it  had  not  been  mentioned ;  that  the  limitation 
to  his  right  heirs  was,  therefore,  void,f  being  no  more  than  what 
the  law  had  already  vested  in  him.  (b) 

32.  The  rule  that  so  much  of  the  use  as  the  owner  of  the  land 
does  not  dispose  of,  remains  in  him,  takes  place  in  those  convey- 
ances to  uses  which  operate  without  transmutation  of  possession, 
as  in  covenants  to  stand  seised,  and  bargains  and  sales,  where  the 
use  arises  out  of  the  estate  of  the  covenantor  or  bargainor;  for 
in  these  cases  so  much  of  the  use  as  the  covenantor  or  bargainor 
does  not  dispose  of,  still  remains  in  him,  as  his  old  estate ;  and  is 
called  a  use  by  implication. 

33.  A,  being  tenant  in  fee,  covenanted  to  stand  seised  to  the 
use  of  his  heirs  male,  begotten,  or  to  be  begotten  on  the  body  of 
his  second  wife.  It  was  determined  that  A  took  an  estate  for 
life  by  implication ;  for  the  limitation  being  to  the  heirs  of  his 
body,  &c,  and  it  being  impossible  for  him  to  have  any  such  heirs 
during  his  life,  as  nemo  est  hceres  viventis,  the  use  was  undisposed 
of  during  his  life,  and  consequently  remained  in  him.  (c) 

34.  It  follows  from  the  same  principle,  that  where  no  use  arises 

{a)  1  Inst.  22.  b. 

(b)  Read  and  Morpeth  v.  Errington,  Cro.  Eliz.  321.     Moo.  284.    2  Rep.  91.  b. 

(c)  Pybus  v.  Mitford,  1  Vent.  327. 


[  t  The  recent  Statute  of  3  &  4  Will.  4,  c.  106,  s.  3,  materially  alters  the  law  in  this 
respect,  so  far  as  regards  limitations  in  deeds  executed  after  the  31st  day  of  December, 
1833,  and  in  wills  of  testators  dying  after  that  day.  For  it  enacts,  that  when  any  land 
shall  have  been  limited  by  any  assurance  executed  after  the  said  day,  to  the  person  or 
to  the  heirs  of  the  person  who  shall  thereby  have  conveyed  the  land,  such  person  shall 
he  considered  to  have  acquired  the  same  as  a  purchaser  by  virtue  of  such  assurance, 
and  shall  not  be  considered  to  be  entitled  thereto  as  his  former  estate  or  part  thereof. 

In  respect  of  wills,  it  enacts,  that  when  any  land  shall  have  been  devised  by  any  tes- 
tator, (dying  after  the  said  day,)  to  the  heir,  or  to  the  person  who  shall  be  the  heir  of 
such  testator,  such  heir  shall  be  considered  to  have  acquired  the  land  as  a  devisee,  and 
not  by  descent.] 


344  Title  XL     Use.     Ch.  IV.  s.  34—40. 

upon  a  covenant  to  stand  seised,  or  bargain  and  sale,  either  for 
want  of  a  sufficient  consideration,  or  for  any  other  cause,  such 
use  will  remain  in  the  covenantor  or  bargainor,  (a) 

35.  From  the  nature  of  resulting  uses,  and  uses  by  implication, 
it  follows  that  they  can  never  arise  to  any  person  but  the  original 
owner  of  the  estate. 

36.  Husband  and  wife  levied  a  fine  of  the  wife's  estate 
375  *  to  the  *  use  of  the  heirs  of  the  body  of  the  husband  on  the 
wife  begotten ;  remainder  to  the  husband  in  fee.  It  was 
resolved,  that  no  estate  resulted  to  the  husband,  because  the  lands 
originally  belonged  to  the  wife.  This  judgment  was  affirmed  by 
the  House  of  Lords,  (b) 

37.  Where  there  is  any  circumstance  to  show  the  intent  of  the 
parties  to  have  been  that  the  use  should  not  result,  it  will  remain 
in  the  persons  to  whom  the  legal  estate  is  limited. 

38.  A  recovery  was  suffered  by  one  Hummerston,  to  the  intent 
that  the  recoverors  should  make  an  estate  to  him  and  his  wife 
for  their  lives,  remainder  to  their  eldest  son  in  tail,  &c.  It  was 
agreed  by  the  Court,  that  after  the  recovery  suffered,  the  recover- 
ors should  be  seised  to  their  own  use ;  for  if  they  were  seised  to 
the  use  of  Hummerston,  then  they  could  not  make  the  estate. 
But  Southcot  and  Wray  said  they  ought  to  do  this  in  convenient 
time,  otherwise  the  use  would  result  to  Hummerston.  (c) 

39.  A  fine  was  levied,  and  an  indenture  made  to  declare  the 
uses  of  it ;  the  words  of  which  were, — "  the  fine  was  levied  to 
the  intent  that  they  should  make  an  estate  to  him  whom  J.  E., 
the  father,  (who  was  the  cognizor,)  should  name."  And  there 
was  a  proviso  at  the  end  of  the  indenture,  that  the  cognizee 
should  not  be  seised  to  any  other  use,  except  unto  that  use  speci- 
fied. It  was  holden  by  all  the  justices,  that  the  lands  should  be 
to  the  use  of  the  cognizees  themselves,  immediately  as  above ; 
that  after  the  nomination,  they  should  be  seised  to  the  use  of 
whomever  he  named ;  and  if  J.  E.  died  without  nomination,  then 
the  law  would  settle  the  use  in  his  heir,  (d) 

40.  A  feoffment  was  made  by  A  upon  condition  to  reconvey 
to  A  for  life,  remainder  to  the  eldest  son  of  A  in  fee.  It  was 
resolved  that  no  use  resulted  to  A;   for  if  so,  then  the  estate 

(a)  Tit.  32.  c.  10.  (b)  Davis  v.  Speed,  Show.  Ca.  in  Pari.  104.     Ante,  s.  24. 

(c)  Hummerston's  case,  Dyer,  166.  a.  n.  (9.)     (337.  a.  pi.  36.) 

(d)  (Betinan  v.  Bateston,  4  Leon.  22.    Dyer,  166.  a.  n.  (9.) 


Title  XL     Use.     Ch.  IV.  s.  40—46.  345 

would  vest  by  the  Statute  of  Uses,  and  the  feoffee  could  not 
make  an  estate  to  A  and  to  his  son.  (a) 

41.  As  resulting  uses  depend  upon  the  intention  of  the  parties, 
parol  evidence  is  admissible  to  show  what  the  intent  was  ; 1  and 
the  clause  in  the  Statute  of  Frauds,  requiring  that  declarations 
of  trusts  and  confidences,  which  is  held  to  include  uses,  should 
be  made  by  some  writing,  signed  by  the  party,  extends,  in 
cases  of  conveyances  to  uses,  to  third  persons  only ;  not  to  the 
persons  conveying,  or  those  to  whom  lands  are  conveyed  to 
uses,  (b) 

*42.  Where  a  use  is  expressly  limited  to  the  owner  of    *376 
the  estate,  he  will  not  be  allowed  to  take  any  resulting  or 
implied  use,  inconsistent  with  the  use  limited  to  him. 

43.  At  a  moot  in  Lincoln's  Inn  Hall,  Mr.  Noy  put  this  differ- 
ence : — If  a  man  makes  a  feoffment  in  fee  to  the  use  of  himself 
for  life,  the  fee  simple  remains  in  the  feoffees,  for  otherwise  he 
will  not  have  an  estate  for  life,  according  to  his  intention  ;  but  if 
the  use  be  limited  to  himself  in  tail,  it  is  otherwise ;  for  both 
estates  may  be  in  him.  (c) 

44.  It  was  held  in  the  Court  of  Wards  by  Popham  and  Ander- 
son, in  the  argument  of  the  Earl  of  Bedford's  case,  that  if  A 
makes  a  feoffment  to  the  use  of  himself  for  forty  years,  and  does 
not  limit  any  other  estate,  the  fee  will  not  result,  but  will  remain 
in  the  feoffees ;  for  otherwise  the  term  would  be  merged.  (jT) 

45.  One  Savage  being  seised  in  fee,  conveyed  his  estate,  by 
lease  and  release,  to  trustees  and  their  heirs,  to  the  use  of  him- 
self for  ninety-nine  years,  remainder  to  trustees  for  twenty-five 
years,  remainder  to  the  heirs  male  of  his  own  body.  It  was  de- 
termined that  no  use  for  life  resulted  to  Savage,  because  that 
would  be  inconsistent  with  the  term  of  ninety-nine  years  ex- 
pressly limited  to  him.  (e) 

46.  A,  by  a  settlement  made  on  his  marriage,  conveyed  cer- 
tain lands  to  the  use  of  himself  for  ninety-nine  years,  if  he  so 

(a)  Winning-ton's  case,  Jenk.  Cent.  6  Ca.  44.  Vide  Altham  v.  Anglesey.  Thrustout  i\ 
Peake,  tit.  36.  c.  2. 

(i)  Roe  v.  Popham,  1  Doug.  25.     11  Mod.  214.     Tit.  32.  c.  3. 

(c)  Dyer,  111.  b.  n.  46.  (d)  (Dyer,  111.  b.  n.  46.    2  And.  197.     Moor,  718.) 

(e)  Adams  v.  Savage,  2  Salk.  679. 

1  Provided  that,  in  cases  free  from  fraud,  the  parol  evidence  be  not  inconsistent  with 
the  deed.     See  post,  tit.  12,  c.  1,  §  45,  note. 


346  Title  XL     Use.     Ch.  IV.  s.  46—50. 

long  lived,  and  after  to  the  use  of  trustees  for  200  years,  remain- 
der to  the  use  of  the  heirs  male  of  his  own  body,  remainder  to 
his  own  right  heirs.  Upon  a  case  referred  to  the  Judges  of  the 
Court  of  Common  Pleas,  from  the  Court  of  Chancery,  they  held 
that  no  estate  of  freehold  could  result  to  A  for  his  life,  because 
another  estate,  viz.,  for  ninety-nine  years,  if  he  so  long  lived,  was 
expressly  limited  to  him,  which  would  be  inconsistent  with  a  re- 
sulting estate  of  freehold,  (a) 

47.  The  doctrine  of  resulting  uses  only  extends  to  those  cases 
where  an  estate  in  fee  simple  passes ;  for  if  a  person  conveys  an 
estate  to  another  in  tail,  without  any  consideration,  or  declara- 
tion of  uses,  no  use  will  result  to  the  donor,  and,  consequently, 
the  donee  will  hold  to  his  own  use ;  because,  by  a  gift  of  this 
kind,  there  is  a  tenure  created  between  the  donor  and  the  donee 
in  tail,  which  amounts  to  a  consideration,  and  prevents  the  use 
from  resulting.  In  the  same  manner  as  if  a  feoffment  had  been 
made  before  the  Statute  of  Quia  Emptores,  the  feoffee  would 

have  held  the  land  to  his  own  use,  because  a  tenure  was 
377*     thereby  *  created,  in  consequence  of  which  he  would  have 
held  of  the  feoffor,  at  least  by  fealty,  (b) 

48.  In  the  same  manner,  if  a  person  leases  lands  to  another  for 
life,  or  years,  no  use  will  result  to  the  lessor.  So  if  a  lessee  for 
life,  or  years,  grants  over  his  estate,  without  any  declaration  of 
use,  the  grantee  will  have  it  to  his  own  use.  In  Gilbert's  Uses, 
p.  65,  the  reason  given  for  this  doctrine,  is,  that  these  lesser 
estates  were  not  used  to  be  delivered,  to  be  kept  for  the  future 
support  and  provision  of  the  family ;  therefore  the  mere  act  of 
delivering  possession  passed  a  right,  without  consideration  ;  since 
there  was  no  presumption,  from  the  use  of  the  country,  that  these 
estates  were  transferred  under  secret  trusts ;  especially  as  rents 
were  usually  reserved  ;  and  they  were  subject  to  waste  and  other 
forfeitures,  (c) 

49.  In  the  case  of  a  conveyance  of  an  estate  for  life  or  years, 
without  consideration,  although  a  use  should  be  declared  of  part 
of  the  estate  to  the  grantee,  yet  there  will  be  no  resulting  use  to 
the  grantor. 

50.  A,  being  a  tenant  for  life,  granted  his  estate  to  B,  by  fine, 

(a)  Rawley  v.  Holland,  2  Ab.  Eq.  753.  22  Vin.  Ab.  188.  pi.  11. 
(6)  Bro.  Ab.  Feoff,  al.  Use,  pi.  10.  Dyer,  146.  b.  Perk.  534,  5. 
(c)  Bro.  Ab.  Feoff,  al.  Use,'  pi.  10.     Dyer,  146,  b.    Perk.  534,  5. 


Title  XL     Use.     Ch.  IV.  s.  50—54.  347 

and  by  indenture  declared  the  use  to  B  for  the  life  of  A  and  B ; 
and  if  B  died,  living  A,  that  it  should  remain  to  C.  Afterwards 
B  died,  living  A;  C  entered  and  let  to  D  for  years,  and  died, 
living  A.  The  question  was,  whether  the  lessee  should  retain 
the  land  as  an  occupant,  during  the  life  of  A,  or  that  A  should 
have  it  again  as  a  resulting  use.  "  It  was  adjudged,  after  argu- 
ment, that  D  should  have  it  as  an  occupant,  and  that  A  had  not 
any  residue  of  the  use  in  him  ;  for  although,  where  tenant  in  fee 
makes  a  deed  of  feoffment,  and  limits  the  use  for  life  or  in  tail, 
and  doth  not  speak  of  the  residue,  it  shall  be  to  the  feoffor  or 
conusor,  because  he  had  the  ancient  use  in  him  in  fee ;  yet  when 
tenant  for  life,  or  he  who  hath  the  particular  estate,  grants  his 
estate  by  fine,  and  limits  the  use  for  years,  or  for  a  particular 
estate,  it  shall  not  return  to  him,  but  be  to  the  conusee,  although 
the  fine  were  without  any  consideration  ;  because  he  who  hath 
the  particular  estate  by  fine  is  subject  to  the  ancient  rent  and 
forfeiture,  which  is  a  sufficient  consideration  to  convey  the  estate 
to  him."  (a) 

51.  As  a  devise  imports  a  bounty,  it  follows  that  it  must  be  to 
the  use  of  the  devisee,  if  not  otherwise  declared ;  and  that  no  use 
can,  in  any  case,  result  to  the  heirs  of  the  devisor,  unless  it 

*  appears  by  the  will  itself  that  the  devise  was  not  made     *  378 
to  the  use  of  the  devisee.     But  if  a  person  be  merely 
named  as  a  devisee  to  uses,  and  the  use  fails,  there  will  be  a  re- 
sulting use  to  the  heir  of  the  devisor,  (b) 

52.  Where  a  tenant  in  tail  suffered  a  common  recovery  of 
his  estate,  by  which  it  was  converted  into  a  fee  simple,  without 
declaring  any  uses  thereof,  it  has  been  doubted  whether  the  use 
which  resulted  to  him  be  in  tail  or  in  fee  simple.  The  language 
of  the  old  books  is,  that  where  there  is  a  feoffment,  fine,  or  recov- 
ery, without  consideration  or  declaration  of  uses,  these  assurances 
shall  enure  to  the  old  uses,  (c) 

53.  Thus,  where  a  father  tenant  for  life,  and  the  son  tenant  in 
tail,  joined  in  suffering  a  common  recovery,  but  the  father  alone 
executed  the  deed  declaring  the  uses  ;  the  Court  directed  the  jury 
to  find  the  uses  according  to  the  estates  which  the  parties  had  at 
the  time  of  suffering  the  recovery,  (d) 

54.  So,  where  a  father  tenant  for  life,  and  the  son  tenant  in 

(a)  Castle  v.  Dod,  Cro.  Jac.  200.  (b)  Tit.  38.  c.  1.     Hartop's  case,  1  Leon.  254. 

(c)  Tit.  36.  c.  7.  id)  Argol  v.  Cheney,  Latch,  82.    Han-is  v.  Evans,  Bridg.  548. 


348  Title  XL     Use.     Ch.  IV.  s.  54—56. 

tail,  suffered  a  common  recovery,  without  any  declaration  of  the 
uses  to  which  it  should  enure  ;  it  was  held  that  it  enured  to  the 
former  use.  (a) 

55.  The  doctrine  laid  down  in  the  above  cases  is  liable  to 
great  objections ;  for  as  resulting  uses  are  guided  by  the  intent 
of  the  parties,  it  follows  that  where  a  tenant  in  tail  suffered  a 
recovery  without  any  declaration  of  uses,  the  presumption  was, 
that  this  act  was  done  for  the  special  purpose  of  acquiring  the 
absolute  dominion  over  his  estate ;  as  it  cannot  be  supposed  that 
he  would  go  to  the  expense  of  suffering  a  recovery,  if  he  was  only 
to  take  the  same  estate  which  he  had  before ;  and  it  has  been 
admitted  in  the  following  case,  that  where  a  tenant  in  tail  suf- 
fered a  common  recovery,  without  any  declaration  of  uses,  the 
resulting  use  was  to  him  in  fee  simple,  (b) 

56.  Earl  Ferrers  being  tenant  for  life,  with  remainder  to  his 
first  and  other  sons  in  tail  male,  and  having  an  eldest  son  Robert, 
who  was  about  seventeen  years  old,  and  several  other  sons,  a  very 
advantageous  match  had  been  agreed  on  between  such  eldest  son 
and  a  young  lady ;  and  articles  were  entered  into  by  Earl  Ferrers 
and  his  son,  whereby  Earl  Ferrers  covenanted  that  he  and  his  son 
should,  within  a  year  after  his  son  came  of  age,  by  fine  or  re- 
covery, settle  the  bulk  of  his  estate  to  the  use  of  his  son  for  life, 

remainder  to  his  first  and  other  sons  in  tail,  &c.  The 
379  *     marriage  *  took  effect,  and  the  eldest  son  Robert,  when 

he  came  of  age,  joined  with  his  father  in  levying  a  fine, 
and  suffering  a  common  recovery ;  but  there  was  no  declaration 
of  uses.     The  son  died,  leaving  an  only  daughter  and  no  son. 

It  appears  from  the  case  that  the  estates  of  which  the  recovery 
was  suffered,  descended  to  the  only  daughter  of  Robert  the  son, 
who  had  joined  his  father  in  the  recovery,  and  had  not  declared 
any  uses.  Now,  if  the  recovery  had  enured,  as  to  Robert  the 
son's  estate,  to  the  old  uses,  he  would  have  been  tenant  in  tail 
male,  with  remainder  to  his  brothers  in  tail  male  successively ; 
and  upon  his  death  without  issue  male,  the  estate  would  have 
vested  in  his  next  brother,  not  in  his  daughter.  But  it  was  so 
fully  admitted  by  the  counsel  of  Earl  Ferrers,  who  was  party  to 
that  suit,  and  who  was  a  younger  brother  of  Robert  the  son,  who 
suffered  the  recovery,  that  in  case  of  no  declaration  of  uses, 
the  use  and  estate  resulted  to  Robert  the  son  in  fee ;  that  the 

(«)  Waker  v.  Snow,  Palm.  359.  (5)  9  Eep.  11.  a.     Gilb.  Uses,  64. 


Title  XI.     Use.     Cli.  IV.  s.  56—58.  349 

only  point  for  which  they  contended  was,  that  the  articles 
executed  by  Robert  the  son,  while  an  infant,  and  under  which 
they  claimed,  amounted  to  a  good  declaration  of  the  uses  of  the 

recovery,  (a) 

57.  This  doctrine  has  been  confirmed  by  the  highest  modern 
authorities.  Thus  Lord  Hardwicke  has  said, — "  I  take  it  for  law 
that  » tenant  in  tail  suffering  a  recovery  is  in  of  the  old  use,  and 
that  the  estate  is  discharged  of  the  Statute  De  Bonis;"  and  in 
another  case, — «  A  common  recovery  will  bar  the  entail,  though 
there  is  no  deed  to  lead  the  uses  ;  because  it  is  in  respect  of  the 
satisfaction  oi  estate  in  value,  which  creates  the  bar."  And 
Lord  C.  J.  Lee  has  said,—"  It  is  the  use  of  the  fee  simple  that 
passes  to  the  recoveror  from  tenant  in  tail,  and  which  results  to 
him  and  his  heirs,  if  no  use  is  declared."  (b) 

58.  It  follows  from  the  above  principles,  that  where  a  tenant 
in  tail  levied  a  tine,  without  any  declaration  of  uses,  he  acquired 
a  base  fee  descendible  to  his  heirs,  as  long  as  he  had  heirs  of  his 
body ;  and,  in  the  case  of  Roe  v.  Popham,  it  must  be  presumed 
that  the  Court  reasoned  in  this  manner ;  for  upon  the  death  of 
the  tenant  in  tail  without  issue,  the  person  who  had  the  reversion 
in  fee  was  held  to  be  entitled  to  the  estate,  (c) 

(a)  Nightingale  v.  Ferrers,  3  P.  Wms.  207.    (b)  1  Atk.  9.     3  Atk.  313.     5  T.  E.  110.  note, 
(c)  Ante,  s.  41. 


VOL.   I.  ^0 


350 


TITLE   XII. 

TRUST. 
BOOKS   OF   REFERENCE   UNDER   THIS   TITLE. 

Blackstone's  Commentaries.    Book  II.  ch.  20. 

Kent's  Commentaries.     Vol.  IV.  Lect.  61. 

G.  Spence,  on  the  Equitable  Jurisdiction  of  the  Court  of  Chancery.    Vol.  I. 

Part  II.  Book  III.  ch.  2—7. 
Flintoff,  on  Real  Property.     Vol.  II.  Book  III.  ch.  2,  3. 
Ch.  Baron  Gilbert,  on  Uses  and  Trusts.     (Sugden's  ed.) 
Sanders,  on  Uses  and  Trusts.     (5th  ed.) 
R.  Preston,  on  Estates.    Vol.  I.  p.  184 — 190. 
Story's  Commentaries  on  Equity  Jurisprudence.     Vol.  II.  ch.  24 — 26, 

29,  32,  33. 
Ch.  Fletcher.    Essay  on  the  Estates  of  Trustees. 
Thomas  Lewis.     Treatise  on  the  Law  of  Trusts  and  Trustees. 
Lomax's  Digest.     Vol.  I.  tit.  10. 

CHAP.  I. 

ORIGIN   AND   NATURE   OF    TRUST  ESTATES. 

CHAP.   II. 

RULES    BY    WHICH    TRUST   ESTATES    OF    FREEHOLD    ARE    GOVERNED. 

CHAP  III. 

RULES  BY  WHICH  TRUST  TERMS  ARE  GOVERNED. 

CHAP.  IV. 

ESTATE    AND    DUTY   OF   TRUSTEES. 


CHAP.  I. 

ORIGIN   AND   NATURE   OF   TRUST   ESTATES. 


Sect.     1.  Origin  of  Trusts. 

3.  Description  of. 

4.  A  Use  limited  upon  a  Use. 
14.  Limitation  to  Trustees  to  pay 

over  the  Rents. 
16.   Trust  for  the  separate  Use  of 

a  Woman. 
21.  Trust  to  sell  or  to  raise  Money. 


Sect.  25.  Or  for  any  other  Purpose  to 
which  a  \legal  Estate  or~\ 
Seisin  is  necessary. 

34.  A  Trust  Estate  limited  after 

Payment   of  Debts,  vests 
immediately. 

35.  Terms  for  Years  limited  in 

Trust. 


Title  XII.     Trust.     Ch.  I.  s.  1—3. 


351 


Sect.  64.   Or  by  Persons  having  only  a 
particular  Estate. 

66.  Where  there  is  Fraud. 

67.  A  Purchase  in  the  Name  of  a 

Child  is  an  Advancement. 

75.  Exception.     Children  eman- 
cipated. 

77.  And  also  a  Wife. 

80.  No   Trust  between  a  Lessor 

and  Lessee. 

81.  Trusts       [executed      distin- 

guished    from       Trusts] 
executory. 
83.  Who  may  be  Trustees. 


Sect.  36.  How  Trusts  may  be  declared. 

40.  Resulting  or  implied  Trusts. 

41.  Contract  for  a  Purchase. 

42.  Purchase  in  the  Name  of  a 

Stranger. 

48.  Purchase  with  Trust  Money. 

52.  Conveyance  without  Consid- 
eration. 

55.  A  Trust  declared  in  Part. 

57.  Or  which  cannot  take  Effect. 

59.  Exception. 

61.  Where   no   Appointment    is 

made. 

62.  Renewal   of  a    Lease   by   a 

Trustee. 

Section  1.  The  object  and  intention  of  the  Statute  27  Hen. 
VIII.  certainly  was,  to  destroy  that  double  property  in  land,  which 
had  been  introduced  into  the  English  law  by  the  invention  of 
uses.  If,  therefore,  the  intention  of  the  legislature  had  been 
carried  into  full  effect,  no  use  could  ever  after  have  existed  for 
more  than  an  instant ;  for  the  moment  a  use  was  created,  the 
statute  would  have  transferred  the  legal  seisin  and  possession  to 
such  use.  But  the  strict  construction  which  the  Judges  put  on 
that  statute  defeated,  in  a  great  measure,  its  effect ;  as  they  deter- 
mined that  there  were  some  uses  to  which  the  statute  did  not 
transfer  the  possession  ;  so  that  uses  were  not  entirely  abolished, 
but  still  continued  separate  and  distinct  from  the  legal  estate,  and 
were  taken  notice  of  and  supported  by  the  Court  of  Chancery, 
under  the  name  of  Trusts,  (a) 

2.  A  trust  is,  therefore,  a  use  not  executed  by  the  Statute  27 
Hen.  VIII. ;  for  originally  the  words  use  and  trust  were  perfectly 
synonymous,  and  are  both  mentioned  in  the  statute.  But  as  the 
provisions  of  the  statute  were  not  deemed  coextensive  with  the 
various  modes  of  creating  uses,  such  uses  as  were  not  provided 
for  by  the  statute  were  left  to  their  former  jurisdiction.  (&) 

3.  A  trust  estate  may  be  described 1  to  be  a  right  in  equity  to 
take  the  rents  and  profits  of  lands,  whereof  the  legal  estate  is 

(a)  Vaugh.  50.    1  Atk.  591.  (&)  1  Black.  Bep.  136. 

1  Mr.  Willis,  adopting  the  view  of  Lord  Stair,  describes  a  trust  as  "An  obligation 
upon  a  person,  arising  out  of  a  confidence  reposed  in  him,  to  apply  property  faith- 
fully, according  to  such  confidence."  See  Stair,  Instit.  LL.  Scotland,  (by  Brodie,) 
b.  4,  tit.  6,  §  2,  Vol.  II.  p.  650 ;  Willis  on  Trustees,  ch.  1,  p.  2. 


352  Title  XII.     Trust.     Ch.  I.  s.  3—4. 

vested  in  some  other  person  ;  to  compel  the  person  thus  seised 
of  the  legal  estate,  who  is  called  the  trustee,  to  execute  such 
conveyances  of  the  land  as  the  person  entitled  to  the  profits,  who 
is  called  the  cestui  que  trust,  shall  direct,  and  to  defend  the  title 
to  the  land.  In  the  mean  time,  the  cestui  que  trust,  when  in 
possession,  is  considered  in  a  court  of  law,  as  tenant  at  will  to 
the  trustee,  (a) 

4.  There  are  three  direct  modes  of  creating  a  trust.  The  first 
arises  from  a  rule  established  in  4  &  5  Phil.  &  Mary,  that  a  use 
could  not  be  limited  on  a  use}     The  reason  given  by  Lord  Bacon 

(a)  1  Show.  E.  73. 


1  This  exposition  of  the  statute,  first  given  in  Tyrrel's  case,  is  classed  by  Black- 
stone  among  the  "  technical  scruples  which  the  Judges  found  it  hard  to  get  over ; " 
and  he  regrets  its  introduction ;  observing  of  this  and  another  rule  restricting  the 
operation  of  the  Statute  of  Uses  to  freehold  estates,  that  "  by  this  strict  construc- 
tion of  the  courts  of  law,  a  statute  made  upon  great  deliberation,  and  introduced  in 
the  most  solemn  manner,  has  had  little  other  effect  than  to  make  a  slight  alteration  in 
the  formal  words  of  a  conveyance."  2  Bl.  Comm.  336.  Ld.  Mansfield,  speaking  of 
the  same  rules,  said  that  "  it  was  the  absurd  narrowness  of  the  courts  of  law,  resting  on 
literal  distinctions,  which,  in  a  manner,  repealed  the  Statute  of  Uses,  and  drove  cestuis 
que  trust  into  Equity."  2  Dougl.  744.  Ld.  Chancellor  Sugden,  also,  is  clearly  of 
opinion  that  the  notion  that  a  use  could  not  arise  out  of  a  use,  so  as  to  be  executed  by 
the  statute,  was  merely  a  technical  subtilty,  which  ought  not  to  have  been  sanctioned 
at  all.  It  was  a  suggestion  which  greatly  perplexed  the  Judges  ;  see  Milborn  v.  Fer- 
rers, Dyer,  114,  b. ;  Girland  v.  Sharp,  Cro.  El.  382;  and  in  Tyrrel's  case  the  point 
evidently  was  not  firmly  held  by  the  Court,  but  was  decided  with  apparent  hesitation, 
and  by  a  mere  turn  of  the  scale  of  opinion.  ''■  Upon  such  .authority  as  this,"  says  the 
learned  Chancellor,  "  it  became,  by  degrees,  a  settled  point,  that  a  use  could  not  arise 
out  of  a  use ;  and  it  is,  at  this  day,  too  firmly  settled  to  be  even  questioned.  For,  it 
is  said,  the  use  is  only  a  liberty,  or  authority  to  take  the  profits ;  but  two  cannot  sev- 
erally take  the  profits  of  the  same  land,  therefore  there  cannot  be  a  use  upon  a  use. 
Daw  v.  Newborough,  Com.  244.  And  see  Symson  v.  Turner,  1  Eq.  Ca.  Abr.  383. 
Perhaps,  however,  there  is  not  another  instance  in  the  books  in  which  the  intention  of 
an  act  of  parliament  has  been  so  little  attended  to.  It  has  frequently  been  observed, 
by  high  authority,  that  there  is  no  magic  in  words.  When,  therefore,  the  act  said  that, 
where  one  person  was  seised  to  the  use  of  another,  the  legal  estate  should  be  transferred 
to  the  cestui  que  use;  it  meant  that  the  person  to  whom  the  estate  belonged  in  con- 
science should  be  invested  with  the  legal  right  to  it.  Now,  if  the  estate  was  conveyed 
to  A  to  the  use  of  B,  in  trust  for  C,  C  was  the  person  entitled  to  the  possession  of  the 
estate,  and  A  was  evidently  seised  to  his  use,  as  it  appeared  by  the  deed  itself,  that  the 
possession  was  not  intended  to  remain  in  B  ;  and  there  is  nothing  in  the  act  to  prevent 
the  possession  vesting  in  C.  And,  at  least,  it  might  have  originally  been  held  without 
any  violation  of  principle,  that  the  statute  first  executed  the  possession  in  B,  and  then 
again  in  C  ;  for,  admitting  that  it  was  necessary  to  first  vest  the  possession  in  the  use 
limited  to  B,  it  would  be  difficult  to  discover  any  thing  in  the  act  which  prevented  the 
possession  given  by  the  statute,  from  immediately  transferring  itself  from  B  to   C. 


Title  XII.     Trust.     Ch.  I.  s.  4.  353 

for  this  determination  is,  because  the  words  of  the  statute  are, — 
Where  any  person  is  seised  of  any  lands  or  tenements  to  the  use 
of  any  other  person ;  —  which  exclude  uses,  as  they  do  not  fall 
within  either  of  those  descriptions,  (a) 

(a)  Tyrrel's  case,  Dyer,  155.  a.    Bac.  Bead.  43.     (Wilson  v.  Cheshire,  1  McCord,  Ch.  R. 
233.) 


This  could  be  effected  by  two  deeds,  and  why  not  by  one  and  the  same  deed  1  Nor 
am  I  satisfied  that  the  Judges  intended  to  hold,  generally,  that  a  use  upon  a  use  was 
void.  They  were  of  opinion,  indeed,  that  if  A,  in  consideration  of  money  paid  by  B, 
bargained  and  sold  land  to  B  to  hold  to  him  and  his  heirs,  to  the  use  of  the  feoffee  for 
life,  in  tail,  or  in  fee,  or  to  the  use  of  a  stranger,  the  uses  were  void,  and  B  should  be 
seised  in  fee,  because  the  consideration  and  sale  implied  the  use  should  he  solely  in  him  in  fee. 
See  Bendl.  p.  61,  pi.  108.  The  limitation  was  deemed  repugnant  to  the  habendum. 
Tyrrel's  case  does  not  go  further  than  this.  But  suppose  it  to  have  been  expressed  in 
the  bargain  and  sale,  that  the  money  belonged  to  C,  and  was  paid  by  B  on  his  behalf, 
and  the  habendum  had  been  to  B  in  fee,  to  the  use  of  C  in  fee  ;  it  does  not  appear  to 
have  been  settled  that  the  use  to  C  would  not  have  been  executed  by  the  statute, 
although  clearly  a  use  upon  a  use.  The  law  must,  however,  at  this  day,  be  considered 
to  embrace  every  case."     Gilbert  on  Uses,  by  Sugden,  p.  348,  note. 

But  whether  the  rule  in  Tyrrel's  case  is  to  be  regarded  as  a  rule  of  construction  in 
all  or  any  of  the  United  States,  may  well  be  doubted.  In  South  Carolina,  indeed,  and 
in  Illinois  and  Missouri,  the  Statute  of  Uses,  27  lien.  8,  has  been  expressly  enacted  in 
nearly  the  same  words ;  and  as  these  enactments  were  long  subsequent  to  that  case, 
those  States,  in  adopting  the  language  of  the  English  statute,  may,  perhaps,  be  sup- 
posed to  have  adopted  also  the  expositions  it  had  received  in  England.  But  in  most 
of  the  other  American  States,  statutes  have  been  passed  expressly  regulating  convey- 
ances, and  providing  in  substance  that  deeds,  executed  in  the  prescribed  manner,  shall 
be  valid  to  pass  the  estate  to  the  grantee  without  any  other  formality.  Such  is  the 
case  in  Massachusetts,  Maine,  New  Hampshire,  Vermont,  Virginia,  North  Carolina,  Ken- 
tucky, Mississippi,  and  Pennsylvania.  Some  have  gone  farther.  Thus,  in  Delaicare, 
Rev.  St.  1829,  p.  89,  §  1,  it  is  enacted,  in  general  terms,  that  the  legal  estate  shall,  in 
all  cases,  accompany  the  use  and  pass  with  it.  In  New  York,  Bev.  Stat-  Vol.  II.  p.  13, 
3d  ed.,  it  is  declared  that  the  party  entitled  to  the  possession  and  receipt  of  profits  shall 
be  deemed  to  have  the  legal  estate,  to  the  same  extent  as  the  equitable  interest. 
A  provision  substantially  similar  exists  in  Indiana,  Bev  Stat.  1843,  ch.  28.  And  in 
Rhode  Island,  every  deed  and  covenant  to  stand  seised  transfers  the  possession  to  the 
cestui  que  use,  without  farther  ceremony.  R.  Isl.  Rev.  Stat.  1844,  p.  260.  In  all  these 
States,  therefore,  deeds  of  conveyance  derive  their  effect  not  from  the  Statute  of  Uses, 
but  from  their  own  statutes  of  conveyances ;  operating  nearly  like  a  feoffment  with 
livery  of  seisin,  to  convey  the  land,  and  not  merely  to  raise  a  use  to  be  afterwards  exe- 
cuted by  the  Statute  of  Uses.  Hence  it  would  seem  that,  in  these  States,  a  use  may 
well  be  limited  on  a  use,  and  the  original  intent  and  principle  of  the  Statute  of  Uses  be 
allowed  to  have  its  free  and  unrestrained  operation,  and  to  convey  the  legal  estate, 
by  its  electric  energy,  to  the  remotest  use,  when  not  arrested  by  any  permanent 
intervening  trust.  Such  operation  has  already  been  admitted  in  deeds  of  bargain 
and  sale ;  and  is  virtually  conceded  in  the  rule,  that  deeds  of  conveyance,  in  what- 
ever form,  may  be  treated  as  any  species  of  conveyance  which  will  best  effectuate 
the   intent   of  the  parties.     See   Davis   v.  Hayden,   9   Mass.    514;   Iligbcc   v.  Rice, 

30* 


354  Title  XII.     Trust     Ch.  I.  s.  5—9. 

382  *  *  5.  Thus,  on  a  feoffment  to  A  and  his  heirs,  to  the  use 
of  B  and  his  heirs,  in  trust  for  C  and  his  heirs,  it  was  held 
that  the  statute  executed  only  the  first  use  ;  and  that  the  second 
was  a  mere  nullity.  But  as  it  was  evident  that  B  was  not  in- 
tended to  be  benefited  by  that  conveyance,  the  Court  of  Chan- 
cery took  cognizance  of  the  case,  and  decreed  that  B  should  pay 
the  rents  and  profits  of  the  land  to  C,  and  execute  such  convey- 
ances as  he  should  direct,  (a) 

6.  In  a  settlement,  lands  were  conveyed  to  trustees  and  their 
heirs,  to  the  use  of  them  and  their  heirs,  to  the  use  of  A  B  for 
life,  &c.  It  was  held  that  the  legal  estate  was  vested  in  the  trus- 
tees, and  that  the  limitations  to  A  B,  &c,  were  but  trusts,  (b) 

7.  Ann  Ratford  conveyed  lands  to  T  B  and  his  heirs,  to  the 
use  of  him  and  his  heirs,  in  trust  to  permit  the  said  Ann  and  her 
husband  to  receive  the  profits  during  their  lives.  Lord  Talbot 
held,  that  as  the  estate  was  limited  to  trustees  and  their  heirs, 
to  the  use  of  them  and  their  heirs,  so  that  it  was  actually  exe- 
cuted in  them,  whatever  came  afterwards  could  be  looked  upon 
only  as  an  equitable  interest ;  for  there  could  not  be  a  use  upon 
a  use.  (c) 1 

8.  [In  a  case  of  devise,  the  rule  of  construction  was  the  same. 
Thus,  where  a  person  devised  his  real  estate  to  trustees  and  their 
heirs,  to  the  use  of  them  and  their  heirs,  upon  several  trusts ;  it 
was  declared  by  Lord  Hardwicke  that  the  legal  estate  was  vested 
in  the  trustees,  and  the  subsequent  devisees  took  only  equitable 
interests,  (d) 

9.  "Where  lands  are  conveyed  by  covenant  to  stand  seised, 
bargain  and  sale,  or  by  appointment  under  a  power  to  A  and  his 
heirs,  to  the  use  of  B  and  his  heirs,  the  legal  estate  will  vest  in 
A  ;  and  B  will  take  only  a  trust  or  equitable  estate  ;  for  in  each 

(«)  2  Bl.  Coram.  336.     (Calvert's  Lessee  v.  Eden,  2  H.  &  McH,  279.) 
(&)  Whetstone  v.  Bury,  2  P.  Wms.  146,    Wagstaff  v.  Wagstaff,  tit.  38,  c.  5.   Doe  v.  Passing- 
ham,  6  B.  &  Cr.  305. 

(c)  Att.-Gen.  v.  Scott,  Forrest  R.  138. 

(d)  Hopkins  v.  Hopkins,  1  Atk.  5S1.    Marwood  v.  Darrell,  Ca.  Temp.  Hardwicke,  91.  S.  P. 


5  Mass.  352  ;  Pray  v.  Pierce,  7  Mass.  3S1  ;  Knox  v.  Jenks,  7  Mass.  488;  Flint  v.  Shel- 
don, 13  Mass.  443  ;  Marshall  v.  Fisk,  6  Mass.  24.     The  rule  in  Tyrrel's  case  was  ex- 
pressly disapproved  by  Dana,  Ch.  J.,  in  Thatcher  v.  Omans,  reported  in  3  Pick.  Suppt. 
p.  528. 
'  See  Cornish  on  Uses,  p.  40,  41  ;  Moor,  46,  pi.  138. 


Title  XII.     Trust.     Ch.  I.  s.  9—11.  355 

of  these  instances,  the  conveyance  does  not  operate  by  transmu- 
tation of  the  seisin  to  A,  but  merely  passes  the  use  to  him,  the 
seisin  remaining  in  the  bargainor,  covenantor,  and  the  releasee, 
&c,  to  uses  in  the  instrument  creating  the  power,  (a) 

10.  In  Venables  v.  Morris,  an  estate  was  limited  by  deed  and 
fine  to  the  use  of  the  husband  for  life,  remainder  to  trustees  and 
their  heirs  during  his  life,  to  preserve  contingent  remainders ; 
remainder  to  the  wife  for  life,  remainder  to  the  trustees  and  their 
heirs,  (generally,  without  confining  the  limitation  to  the  life  of 
the  wife,)  to  preserve  the  contingent  uses  and  estates 
thereinafter  *  limited;  remainder  to  such  persons,  &c,  as  *383 
the  wife  should  appoint,  &c.  Upon  a  case  sent  by  the 
Court  of  Chancery,  the  Court  of  King's  Bench  certified  that  the 
trustees  took  the  legal  estate  in  fee  after  the  determination  of  the 
wife's  life  estate,  and  that  all  the  subsequent  limitations  were 
trusts,  (b) 

Lord  Kenyon  observes,  upon  the  above  case,  that  it  was  abso- 
lutely necessary  that  the  trustees  should  take  the  legal  fee,  for 
the  wife  in  exercise  of  her  power  of  appointment  might  create 
contingent  remainders,  which  would  require  the  estate  in  the 
trustees  to  support  them,  (c) 

11.  The  case  of  Doe  v.  Hicks,  which  is  one  of  devise,  seems  to 
have  overruled  Boteler  v.  Allington,  and  is  distinguished  from 
Venables  v.  Morris,  in  the  material  circumstance  that  there  was 
no  power  of  appointment.  In  Doe  v.  Hicks,  the  estate  was  de- 
vised to  A  for  life,  to  trustees  and  their  heirs  (generally)  to  pre- 
serve contingent  remainders ;  to  the  first  and  othej.  sons  of  A 
successively  in  tail  male ;  then  followed  limitations  to  several 
other  tenants  for  life,  to  the  trustees  to  preserve,  and  to  the  first 
and  other  sons  in  tail  male  as  before,  the  limitations  in  every  in- 
stance being  to  the  trustees  and  their  heirs  (generally;)  with  the 
ultimate  limitation  to  the  right  heirs  of  the  testator.  The  Court 
of  King's  Bench  held  that  it  was  not  necessary  for  the  trustees 
to  take  the  legal  fee,  and  the  intention  of  the  testator  appeared 
to  be,  that  the  estate  limited  to  the  trustees  should  be  confined 
to  the  lives  of  the  tenants  for  life;  for  if  the  testator  did  not 
intend  this,  all  the  subsequent  limitations  to  the  trustees  were 

(a)  Tit.  32.  c.  10, 14.     See  the  Tables,  supra,  p.  368,  n. 

(b)  7  T.  R.  342,  438.  (c)  7  T.  R.  437. 


356     •  Title   XII.     Trust.     Ch.   I.   s.   11—13. 

absolutely  nugatory,  and  that  the  devise  ought  to  be  construed 
accordingly,  (a) 

12.  But  it  has  been  decided  in  Colmore  v.  Tyndall,  that  in  a 
deed,  limitations,  nearly  resembling  those  in  the  above  case  of 
Doe  v.  Hicks,  do  not  indicate  an  intention  to  give  the  trustees  an 
estate  pour  autre  vie  so  clearly,  as  to  justify  the  Court  in  confining 
the  limitation  to  the  trustees  to  the  lives  of  the  tenants  for  life. 
In  Colmore  v.  Tyndall,  after  several  limitations  in  strict  settle- 
ment, among  which,  those  to  the  trustees  to  preserve  were  con- 
fined to  the  lives  of  the  tenants  for  life,  the  estate  was  limited  to 
Marianne  Colmore  for  life ;  with  a  contingent  life-estate  to  her 
husband  in  case  she  married  ;   remainder  to  the  trustee  and  his 

heirs  (generally)  to  preserve ;  remainder  to  her  first  and 
384  *     other  *  sons  successively  in  tail  male ;    then  to  Caroline 

Colmore  for  life,  to  her  husband  if  she  married,  to  the 
trustee  and  his  heirs  (generally)  to  preserve  ;  to  her  first  and 
other  sons  in-  tail  male  as  before ;  with  the  remainder  over  in 
fee.  Marianne  Colmore  died  unmarried.  The  Court  of  Ex- 
chequer Chamber  decided  that  the  legal  fee  vested  in  the  trustees, 
after  the  life-estate  of  Caroline  Colmore.  (7>) 

13.  But  where  in  a  deed,  the  intention  is  apparent  from  the 
subsequent  limitations,  in  order  to  give  effect  to  which  it  becomes 
necessary  to  confine  the  limitation  to  the  trustees  during  the  life 
of  the  tenants  for  life,  there  such  a  construction  will  be  adopted. 
To  this  principle  the  case  of  Curtis  v.  Price  must  be  referred ; 
there  the  estate  was  by  lease  and  release  limited  to  the  husband 
for  life,  to  his  wife  for  life,  if  she  continued  unmarried,  if  not, 
to  trustees  and  their  heirs  (generally)  upon  trust  to  pay  her  an 
annuity  out  of  the  rents  during  her  life  for  her  separate  use,  and 
to  apply  the  surpjus  for  the  benefit  of  the  children  of  the  mar- 
riage, and  after  the  decease  of  husband  and  wife  to  the  trustees, 
their  executors,  &c,  for  a  term  of  one  hundred  years,  for  raising 
portions  for  younger  children,  remainder  to  the  heirs  of  the  body 
of  the  wife  by  the  husband,  remainder  to  the  right  heirs  of  the 
husband.  Sir  William  Grant,  M.  R.,  was  of  opinion  that  the 
limitation  to  the  trustees  should  be  confined  to  the  life  of  the  wife, 
because  the  term  of  one  hundred  years  could  not  arise  consistently 
with  the  limitation  of  the  entire  fee  to  the  same  trustees.]  (c) 

(a)  Doe  v.  Hicks,  7  T.  E.  433.  Boteler  v.  Allington,  1  Bro.  C.  C.  72.  Nash  v.  Coates,  3  B. 
&  Aid.  839. 

(6)  Colmore  v.  Tyndall,  2  Yo.  &  Jerv.  605.  (c)  Curtis  v.  Price,  12  Yes.  89. 


Title   XII.     Trust.     Ch.  I.    s.   14.  357 

14.  The  second  mode  of  creating-  a  trust,  arose  from  an  opinion 
delivered  by  the  Judges  in  36  Hen.  VIII.,  that  where  a  person  ' 
made  a  feoffment  in  fee,  to  his  own  use,  during  his  life,  and  after 
his  decease,  that  I.  N.  should  take  the  profits,  this  was  a  use  in 
I.  N. ;  contrary,  if  he  said  that  after  his  death  his  feoffees  should 
take  the  profits,  and  deliver  them  to  I.  N.  This  would  be  no  use 
in  I.  N.,  because  he  could  have  them  only  by  the  hand  of  the 
feoffees.  Thus  the  feoffees  would  have  the  legal  estate ;  and 
consequently  I.  N.  could  only  have  a  trust,  which  would  be 
enforced  in  equity,  (a)1 

(«)  Bro.  Ab.  tit.  Feoffm.  al.  Use,  52. 

1  Respecting  the  estates  of  trustees,  the  principal  inquiries,  at  the  present  day  are, 
first,  whether  the  estate  conveyed  is  within  the  operation  of  the  Statute  of  Uses  ;  that 
is, whether  the  trustee  took  any  estate  at  all;  and,  secondly,  if  he  did,  then  what  estate 
did  he  take. 

In  regard  to  conveyances  by  deed,  the  first  of  these  questions  seldom  arises  ;  because, 
since  the  Statute  of  Uses,  if  the  parties  intend  to  make  a  conveyance  in  trust,  they  are 
generally  careful  to  frame  it  so  as  to  be  clearly  out  of  the  reach  of  the  statute. 
The  questions  most  frequently  raised  are  upon  the  interpretation  of  wills.  The  first 
class  of  these  cases  consists  of  those,  in  which  there  is  no  express  devise  to  trustees, 
but  an  intention  is  more  or  less  apparent  of  creating  a  trust  of  real  estate,  and  of  imposing 
the  duty,  and  with  it  the  estate,  upon  certain  persons.  When  that  intention  is  clear,  an 
estate  in  the  trustees  will  be  implied,  in  order  to  give  effect  to  the  testator's  intention  in 
this,  as  in  all  other  cases. 

This  intention  may  be  uncertain  in  two  ways ;  either,  first,  because  it  does  not 
plainly  appear  that  the  trust  is  intended  to  attach  to  the  land  ;  or,  secondly,  because  the 
performance  of  the  duty  itself  does  not  necessarily  require  that  the  trustee  should  have 
an  estate  in  the  land.  An  example  of  the  former  kind  of  uncertainty,  was  in  Doe  v. 
Woodhouse,  4  T.  R.  89  ;  where  the  testator  willed  that  his  debts  and  several  annuities 
should  be  paid  by  his  executors  out  of  his  whole  estate  ;  and  it  was  decided  that  these 
words,  being  sufficient  to  include  real  property,  gave  his  executors  an  estate,  by  impli- 
cation, in  the  land. 

Where  the  question  turns  upon  the  nature  of  the  duty  to  be  performed,  a  distinction 
is  made  between  a  trust,  which  carries  with  it  some  legal  estate  or  interest  in  the  land, 
and  a  bare  power  or  authority  to  sell ;  and  the  rule  is,  that  where  the  duty  to  be  per- 
formed may  be  sufficiently  accomplished  by  the  exercise  of  a  bare  power  or  authority, 
the  will  is  to  be  construed  as  creating  nothing  more  than  such  power  and  authority,  un- 
less more  is  expressly  given ;  since,  by  such  construction,  the  heir  is  not  disinherited. 
Any  subsequent  limitations  in  the  will  may  take  effect,  subject  to  this  power  to  sell. 
Fletcher  on  Trustees,  11,  12'. 

Thus,  where  a  man  devised  his  tenements  to  be  sold  by  his  executors,  it  was  thought 
by  Lord  Coke,  and  after  him  by  Mr.  Hargrave, — Co.  Lit.  113,  a,  n.  2, — that  an 
interest  passed  to  them,  in  trust.  But  this  opinion  is  now  regarded  as  unsound; 
and  the  devise  is  held  to  confer  only  a  power  to  sell.  Sugd.  Fow.  10G;  1  Chance, 
Pow.  62. 

[Trustees  under  a  will,  who  are  authorized  to  grant  and  sell  the  whole  or  any  part  of 
the  testator's  estate  real  or  personal,  with  full  power  to  execute  any  deed  or  deeds 


358  Title  XII.     Trust.     Ch.  I.  s.  14. 

A  distinction  has,  however,  been  made  between  a  devise  to  a 
person  in  trust,  to  pay  over  the  rents  and  profits  to  another  ;  and 

effectual  in  law,  to  pass  a  complete  title  thereto,  do  not  take  the  legal  estate  therein. 
Fay  v.  Fay,  1  Cush.  93.] 

A  second  class  of  doubtful  cases  is,  where  there  is  an  express  devise  to  trustees, 
but  it  seems  to  depend  upon  a  contingency  which  has  failed.  Here,  also,  an  im- 
portant distinction  is  made,  viz.,  between  contingent  gifts  in  trust,  and  gifts  upon 
contingent  trusts.  Thus,  where  a  testator,  in  case  his  personal  estate  should  not 
suffice  to  pay  his  debts,  gave  all  his  real  estate  to  his  executors  in  trust,  to  pay  his 
debts,  and  to  pay  the  residue  over  to  others,  this  was  held  a  contingent  devise,  in 
trust ;  and  the  personal  estate  proving  sufficient  to  pay  the  debts,  nothing  passed  to 
the  executors,  because  the  contingency  never  happened,  on  which  alone  they  were 
to  take.  But  where  the  testator  devised  all  his  lands  to  his  executors,  in  trust,  to 
pay  certain  legacies  thereout,  in  case  the  personal  estate  was  not  sufficient,  this  was 
an  absolute  devise,  the  trust  only  being  contingent,  and  of  course  the  executors  took 
the  estate,  at  all  events.  2B.&C.  357  ;  3  Dow.  &  Ry.  764 ;  2  Brod.  &  B.  623  ;  3  B. 
&  C.  161. 

A  third  class  of  cases,  in  which  it  is  doubtful  whether  the  trustee  takes  any  estate  or 
not,  is  where  the  devise  itself  is  express  and  unconditional,  but  such  uses  or  trusts  are 
also  declared,  as  may  possibly  be  executed  by  the  Statute  of  Uses,  so  as  to  take  the 
estate  immediately  out  of  the  trustee  and  vest  it  in  the  cestui  que  trust. 

Here  it  is  a  well  settled  principle,  that  the  estates  of  devisees  in  trust,  are  not  to  be 
taken  from  them  by  the  execution  of  uses,  contrary  to  the  intentions  of  the  testator ; 
and  the  question,  therefore,  is,  whether  the  will  itself  affords  sufficient  evidence  of  the 
testators  intention,  that  the  estate  of  the  trustees  should  remain  in  them.  Fletcher  on 
Trustees,  19. 

This  intent  may  be  manifested  by  requiring  the  trustees  to  perform  some  act,  either, 
1st,  not  relating  to  the  ulterior  gift,  but  subject  to  which  act  or  duty  others  are  to  have 
the  benefit  of  the  estate, — see  1  Eden,  125, — or  2d,  relating  to  the  estate  itself  and  the 
manner  in  which  the  cestui  que  trust  is  to  enjoy  the  benefit  of  it. 

Thus,  where  a  trust,  and  not  a  mere  power  to  sell,  is  plainly  created  ;  or  a  devise  is 
made  in  trust  to  raise  money,  to  be  applied  to  collateral  purposes,  with  remainder  to 
the  use  of  the  cestui  que  trust ;  it  is  manifest  that  the  testator  intended  that  the  estate 
should  vest  in  the  trustee.  Bagshaw  v.  Spencer,  1  Vcs.  Sen.  142.  And,  though  the 
trust  for  sale  is  limited  to  arise  on  a  contingency  which  may  not  happen,  yet,  if  it  may 
happen,  the  legal  estate  will  be  held  to  be  executed  in  the  trustees,  from  the  beginning. 
Rogers  v.  Gibson,  Ambl.  95. 

Where  money  is  to  be  raised  out  of  lands,  for  the  payment  of  debts  or  legacies,  it 
sometimes  becomes  a  question,  whether  it  is  a  devise  in  trust,  or  a  mere  charge  upon 
the  lands  in  the  hands  of  "the  residuary  devisee.  This  difficulty  is  settled,  by  consider- 
ing whether  the  testator  intended  that  the  trustee  or  executor  should  be  active  in  the 
payment  of  the  money,  or  not.  If  such  intent  does  not  appear,  the  Judges  of  C.  B. 
thought  that  the  legal  estate  would  not  vest  in  the  trustee,  but  that  the  estate  would  be 
executed  in  the  devisee,  charged  with  the  payment  of  the  money.  Kenrick  v.  Ld. 
Beauclerk,  3  B.  &  P.  175. 

And  it  may  be  stated,  generally,  that  "  where  trustees  are  directed  to  do  any  acts 
relating  to  the  land  devised,  which  are  usually  performed  by  the  legal  tenant,  the 
testator's  intention  will  be  taken  to  be  that  they  are  to  retain  the  legal  estate  ;  and, 
accordingly,  it  will  not  be  executed  in  the  cestui  que  trust."    Fletcher  on  Trustees,  27. 


Title  XII.     Trust.     Ch.  I.  s.  14.  359 

a  devise  to  a  person,  in  trust  to  permit  another  to  receive  the  rents 
and  profits.     In  the  former  case  it  was  held  that  the  legal  estate 

Then,  as  to  those  cases  where  the  intent  is  to  be  collected  from  the  manner  in  which 
the  cestui  que  trust  is  to  enjoy  the  estate  ;  the  principle  is  very  broadly  stated  in  Gregory 
v.  Henderson,  4  Taunt.  772,  that,  "  though  an  estate  be  devised  to  A  and  his  heirs  to 
the  use  of  B  and  his  heirs,  the  Courts  will  not  hold  it  a  use  executed,  unless  it  appear 
that  the  testator  intended  it  should  be  executed."  These  last  words  are  material,  and 
without  them  the  proposition  would  not  hold  true.  But  how  is  the  intent  to  be  ascer- 
tained, if  nothing  more  appears  in  the  will,  than  the  devise,  in  those  terms  ?  Clearly, 
by  referring  to  another  and  well  settled  rule  of  interpretation  ;  that  "where  a  testator 
uses  technical  words,  he  must  be  presumed  to  employ  them  in  their  legal  sense,  unless 
the  context  contain  a  clear  indication  to  the  contrary."  2  Pow.  Dev.  by  Jarrn.  8; 
2  Co.  Litt.  271  b,  n.  1,  sec.  3,  p.  5.  Accordingly,  such  a  devise  would  be  held  to  con- 
vey a  legal  estate  to  B,  the  cestui  que  trust,  and  his  heirs,  by  the  operation  of  the  stat- 
ute. Broughton  v.  Langley,  2  Salk.  679;  2  Ld.  Raym.  873;  Fletcher  on  Trustees, 
30 ;  Doe  v.  Collier,  11  East,  377. 

A  devise  of  a  freehold  estate,  in  trust,  to  permit  another  to  receive  the  rents  and 
profits,  is  executed  by  the  statute.  So  held  in  Broughton  v.  Langley,  2  Salk.  679,  per 
Holt,  C.  J.  And  though  Sir  J.  Mansfield,  C.  J.,  in  Doe  v.  Biggs,  2  Taunt.  109,  ex- 
pressed strong  disapprobation  of  this  rule,  inquiring  how  a  man  could  be  said  to  permit, 
who  had,  or  was  intended  to  have,  no  power  to  prevent ;  yet  his  objection  is  deemed 
untenable,  as  it  is  founded  on  the  popular  and  not  the  legal  meaning  of  the  words. 
Kinch  v.  Ward,  2  Sim.  &  Stu.  409,  per  Sir  J.  Leach,  Vice-Chan. 

The  words,  use,  trust,  and  permit  to  receive  profits,  have  all  the  same  legal  effect ; 
and  where  they  alone  are  employed,  without  other  qualifying  expressions,  evincive  of  a 
different  intention,  they  give  the  legal  estate  to  the  person  beneficially  interested. 

But  where  the  cestui  que  trust  is  a  married  woman,  and  it  is  apparent  that  the  testator 
intended  a  benefit  to  her  alone,  and  not  to  her  husband,  this  circumstance  is  sufficient 
to  vest  the  legal  estate  in  the  trustee,  since  otherwise  the  intent  of  the  testator  will  be 
defeated.  Say  &  Sele  v.  Jones,  1  Eq.  Ca.  Ab.  383  ;  3  Bro.  P.  C.  113 ;  Infra,  sec.  16  ; 
Fletcher  on  Trustees,  36 — 41. 

So,  it  was  holden  as  early  as  36  Hen.  8,  that  a  trust  to  receive  the  rents  and 
profits  of  real  estate,  and  pay  them  over  to  another,  was  not  a  trust  which  the  statute 
would  execute.  And  it  makes  no  difference  whether  such  trust  is  created  by  deed  or 
by  will.  Supra,  §  14.  [But  such  a  trust  is  valid  under  the  New  York  Statute  (1  Rev. 
St.  728,  §  55,  sub.  3,)  authorizing  the  creation  of  trusts  to  receive  the  rents  and  profits 
of  lands  and  "apply  them  to  the  use"  of  any  person.  Leggett  v.  Perkins,  2  Comst. 
297.  There  were  dissenting  opinions  in  this  case.  A  conveyance  of  real  estate  in  trust 
is  void  under  that  statute,  unless  it  provides  that  the  trustees  shall  receive  and  apply 
the  rents  and  profits  thereof  to  the  use  of  some  person.  Jarvis  v.  Babcock,  5  Barb. 
Sup.  Ct.  139.     See,  also,  Campbell  v.  Low,  9  lb.  585.] 

So  where  lands  are  devised  to  a  trustee,  in  trust,  to  convey  them  to  the  objects  of  the 
testator's  bounty,  or  to  settle  them  on  another,  or  to  mortgage  or  let  them,  a  legal 
estate  is  held  to  be  vested  in  the  trustee,  commensurate,  at  least,  with  the  interest  which 
he  must  necessarily  convey,  in  execution  of  the  trust.  Fearne's  Cas.  and  Opin.  421, 
422 ;  per  Sir  W.  Grant,  M.  R.,  in  Mott  v.  Buxton,  7  Ves.  201 ;  Leonard  v.  Sussex. 
2  Verm.  526  ;  Chapman  v.  Blissett,  Cas.  Temp.  Talbot,  145,  150,  cases  in  note  (/) 

Having  thus  briefly  disposed  of  the  Jirst  general  inquiry,  made  in  regard  to  trustees, 
— namely,  whether  they  have  any  estate  at  all  in  the  lands ;  we  will  now  state  a  few 


360  Title  XII.     Trust.     Ch.  I.  s.  14. 

should   continue   in   the  first  devisee,  in   order   that   he 
385  *    might   *  be  able  to  perform  the  trust ;  for  where  he  is 


principles  in  relation  to  the  other  question, — namely,  what  is  the  nature  or  quantity  of 
the  estate,  where  any  has  passed  ? 

It  is  obvious  that  if  the  trustee  is  to  do  any  act,  he  ought  to  have  sufficient  power 
to  perform  it.  Hence  the  general  rule  has  been  established,  which  was  recognized 
by  Lord  Ellenborough  in  Trent  v.  Hanning,  7  East,  99,  that  "trustees  must,  in  all 
cases,  be  presumed  to  take  an  estate  commensurate  with  the  charges  or  duties  imposed 
on  them."  See  also  Doe  v.  Willan,  2  B.  &  Aid.  84  ;  Gibson  v.  Montfort,  1  Ves.  sen. 
405.  Therefore,  where  lands  are  devised  for  a  particular  purpose,  without  words  of 
inheritance,  and  the  death  of  the  devisee  may  defeat  the  object  of  the  devise,  he  will 
take  a  fee.  This  doctrine  is  frequently  applied  to  trusts  created  to  support  estates  of 
inheritance.  8  Vin.  Abr.  262,  pi.  18,  cites  Shaw  v.  Wright,  in  1  Eq.  Ca.  Abr.  176,  pi. 
8.  [Where  land  is  devised  to  trustees,  they  will  take  the  legal  estate  wherever  it  is  nec- 
essary in  order  to  effect  the  purposes  of  the  trust ;  but  if  they  be  not  required  to  do  an 
act,  or  exercise  any  control  over  the  land  or  the  income,  the  legal  estate  will  vest  in 
the  cestui  que  trust.  TJpham  v.  Varney,  15  N.  H.  462  ;  Ward  v.  Amory,  1  Curtis,  Ct.  Ct. 
R.  419  ;  Newhall  v.  Wheeler,  7  Mass.  189;  Stearns  v.  Palmer,  10  Met.  35  ;  Gould  v. 
Lamb,  11  lb.  84  ;  Brooks  v.  Jones,  lb.  191 ;  Cleveland  v.  Hallett,  6  Clash.  403  ;  King 
v.  Parker,  9  lb.  71  ;  Norton  v.  Norton,  2  Saudf.  Sup.  Ct.  296  :  Williams  v.  First  P.  Soc. 
in  Cin.,  1  Ohio  State  R.  478.  And  where  a  conveyance  of  land  was  made  to  "  A,  as 
he  is  trustee  of  B,"  the  nature  of  the  estate  may  be  ascertained  by  reference  to  the  will 
creating  the  trust,  although  the  will  is  not  referred  to  in  the  deed.  Cleveland  v.  Hal- 
lett, 6  Cush.  403.] 

On  the  other  hand,  trustees  must  not  in  general  be  allowed,  by  mere  construction  or 
implication,  to  take  a  greater  estate  than  the  nature  of  the  trust  demands  ;  for  this 
would  disinherit  the  heir,  which  is  always,  as  far  as  possible,  to  be  avoided,  and  may 
also  defeat  the  ulterior  limitations  in  the  will.  Per  Heath,  J.,  in  Doe  r.  Barthrop, 
5  Taunt.  385  ;  per  Lord  Ellenborough,  in  Doe  v.  Simpson,  3  East,  171,  172. 

It  must,  however,  be  observed,  that  the  rule  recognized  by  Lord  Ellenborough,  in 
Trent  v.  Hanning,  is  not  an  independent  principle  of  construction.  It  is  merely  the 
governing  principle  in  all  cases  of  doubt,  where  the  intention  of  the  testator  is  not  ex- 
pressed as  to  the  nature  or  quantity  of  estate  which  he  intends  to  convey,  but  only  as 
to  the  final  purposes  and  objects  to  be  obtained  by  the  devise  itself.  For  wherever, 
from  the  face  of  the  will,  it  is  apparent  that  the  testator  meant  to  give  a  fee  to  the  trus- 
tees, they  will  take  a  fee,  although  the  purposes  of  the  trust  might  have  been  effected 
by  the  grant  of  a  lesser  estate. 

Thus,  a  trust  for  sale  is  considered  as  necessarily  extending  over  the  whole  estate  or 
interest  of  the  testator  in  the  lands  directed  to  be  sold  ;  so  that  where  he  has  a  fee  sim- 
ple, a  freehold  for  life,  or  the  like,  they  will  take  the  same  estate ;  and  this,  whether 
words  of  inheritance  be  used,  or  not;  and  whether  the  trust  for  sale  be  expressly  de- 
clared, or  raised  by  implication  of  law.  Loveacres  v.  Blight,  Cowp.  352.  So,  if  the 
trust  is  to  mortgage  lands,  or  to  convey  them  in  fee,  or  to  serve  perpetual  uses,  or  to 
make  leases  indefinitely,  the  trustee  will  be  understood  to  take  a  fee,  since  this  quantity 
of  estate  will  be  required,  to  perform  the  trusts.  Bagshaw  r.  Spencer,  1  Ves.  sen.  142; 
Wright  v.  Pearson,  Amb.  358;  1  Eearn.  Cont.  Rem.  187,  (93)  S.  C  ;  1  Eden,  119. 
But  if  a  lesser  estate  be  expressly  limited,  however  inadequate  it  may  be  to  carry  the 
trusts  into  complete  effect,  the  trustee  cannot  take  a  greater  estate  by  implication.    The 


Title  XII.     Trust.     Ch.  I.  s.  14—15.  361 

directed  to  pay  over  the  rents  and  profits,  he  must  necessarily 
receive  them  ; '  but  in  the  latter  case  it  has  been  adjudged  that 
the  legal  estate. is  vested,  by  the  statute,  in  the  person  who  is  to 
receive  the  rents. 

15.  Lands  were  devised  to  trustees  and  their  heirs,  to  the  in- 
tent to  permit  A  to  receive  the  rents  for  his  life,  &c.  It  was 
determined  that  this  would  have  been  a  plain  trust  at  common 
law ;  and  what  at  common  law  was  a  trust  of  a  freehold  was 

course  in  sucli  cases  is  to  apply  to  the  legislature  for  power  to  carry  the  trust  into  effect. 
Warter  v.  Hutchinson,  1  B.  &  C.  721,  747. 

Where  a  devise  is  without  words  of  limitation,  in  trust  to  raise  a  gross  sum  of  money 
out  of  the  annual  rents  and  profits  of  lands,  the  trustees  are  understood  to  take  a  chat- 
tel interest  in  the  lands,  determinable  at  such  time  as  they  might,  by  ordinary  care  and 
diligence,  have  raised  the  money.  But  it  is  said,  that  if  lands  be  limited  by  deed,  to 
hold  for  the  payment  of  debts,  or  of  such  legacies  as  the  grantor  may  give  by  his 
will,  the  grantee  would  take  a  freehold  conditional,  determinable  on  the  receipt  of 
sufficient  moneys  out  of  the  land,  for  the  purposes  of  the  grant.  Cordal's  case,  Cro. 
Eliz.  316. 

It  is  also  to  be  noted  that  the  chattel  interest  thus  taken  by  the  trustee,  will  still  be 
held  of  uncertain  duration,  though  the  lands  be  of  certain  annual  value,  and  the  sum 
to  be  raised  is  expressly  stated  in  the  will.     Co.  Litt.  42,  a. 

But  it  is  only  where  the  money  is  to  be  raised  by  the  annual  profits,  that  a  chattel 
interest  is  taken.  If  it  is  to  be  raised  by  sale,  a  fee  is  implied,  as  has  been  already  re- 
marked. 

If  the  trustees  are  directed  to  receive  and  apply  the  profits  of  land  for  a  limited  time 
only,  and  there  is  no  express  limitation  of  their  estate,  they  are  presumed  to  take  the 
legal  estate  for  that  period  of  time,  and  no  longer. 

Thus,  where  lands  were  devised  to  trustees,  in  trust  for  an  infant  till  he  should  be 
twenty-one,  and  then  to  his  use,  it  was  held  that  they  took  only  a  term,  for  as  many 
years  as  would  elapse  till  his  coming  of  age.  Goodtitle  v.  Whitby,  1  Burr.  228.  But 
if  they  were  directed  to  convey  to  him,  upon  his  coming  of  age,  then,  upon  the  princi- 
ples before  stated,  they  would  necessarily  take  a  fee.  Doe  v.  Field,  2  B.  &  Ad.  564 ; 
Stanley  v.  Stanley,  16  Ves.  491,  505. 

These,  and  similar  cases,  are  all  determined  by  the  will  of  the  testator.  If  his  object 
can  be  effected,  by  allowing  the  Statute  of  Uses  its  full  operation,  and  vesting  the  estate 
immediately  in  the  objects  of  his  bounty,  it  is  so  done,  provided  he  has  not  expressed  a 
different  intention.  If  he  has  designated  any  duty  to  be  actively  performed  by  the 
trustee,  in  relation  to  the  land,  and  has  not  declared  the  nature  of  the  estate  which  the 
trustee  is  to  take,  the  law  declares  it  for  him,  by  presuming  he  intended  to  grant  an 
estate  just  sufficient  to  effect  his  ulterior  purpose,  and  no  more.  But  if  he  has  ex- 
pressly limited  the  estate  to  be  taken  by  the  trustee,  the  law  merely  sanctions  the  intent 
so  expressed,  and  aids  the  trustee  in  performing  the  trust,  only  so  far  as  the  testator  has 
enabled  him  to  perform  it. 

1  But  where  a  devise  was  made  to  trustees  "  to  hold  to  the  use  and  benefit,  and  to  apply 
the  rents,  issues,  and  profits  to  each  and  for  each,"  &c. ;  it  was  held  that  such  devise 
was  executed  by  the  Statute  of  Uses,  notwithstanding  the  word  "  apply."  Laurens  v. 
Jenney,  1  Spccrs.  356. 

VOL.    I.  31 


362  Title  XII.     Trust.     Ch.  I.  s.  15—20. 

executed  by  the  statute  ;  which  mentioned  the  word  trust,  as  well 
as,  use.  And  that  the  case  of  Burchett  v.  Durdant,  which  had 
been  determined  otherwise,  was  not  law.  (a) 

16.  Where  an  estate  is  devised  to  trustees,  for  the  separate  use 
of  a  married  woman ;  the  Courts  will,  if  possible,  construe  the 
devise  so  as  to  vest  the  legal  estate  in  the  trustees  ;  because  such 
a  construction  will  best  effectuate  the  intention  of  the  testator. 

17.  Lands  were  devised  to  trustees  and  their  heirs,  in  trust  for 
a  married  woman  and  her  heirs ;  and  that  the  trustees  should 
from  time  to  time  pay  and  dispose  of  the  rents  to  the  said  mar- 
ried woman  for  her  separate  use.  The  Court  held  it  to  be  a  trust 
only,  and  not  a  use  executed  by  the  statute,  (b) 

18.  A  testator  gave  all  the  rents  of  certain  lands  to  a  married 
woman,  during  her  life ;  to  be  paid  by  his  executors  into  her  own 
hands,  without  the  intermeddling  of  her  husband.  Lord  Chief 
Justice  Holt  was  of  opinion  that  the  executors  took  the  legal 
estate  as  trustees  for  the  wife  ;  but  the  other  Judges  were  of  a 
contrary  opinion.  Lord  Holt's  opinion  was,  however,  fully  estab- 
lished in  the  following  case,  (c) 

19.  Lands  were  devised  to  trustees  and  their  heirs,  in  trust  to 
pay  several  legacies  and  annuities,  and  then  to  pay  the  surplus 
rents  into  the  proper  hands  of  a  married  woman ;  and  after  her 
decease,  that  the  trustees  should  stand  seised  to  the  use  of  the 
heirs  of  her  body.  It  was  decreed,  that  this  was  a  use  executed 
in  the  trustees  during  the  life  of  the  married  woman ;  but  that 
after  her  decease,  the  legal  estate  vested  in  the  heirs  of  her  body. 
This  decree  was  affirmed  by  the  House  of  Lords,  after  consulting 
the  Judges.  (dT) 

20.  In  the  preceding  case,  the  direction  to  the  trustees  to  pay 
annuities,  and  the  trust  to  pay  the  surplus,  would  have  justified 
the  decree.     But  in  a  modern  case  sent  out  of  Chancery,  an 

estate  was  devised  to  trustees  and  their  heirs,  upon  trust 
386  *    to  *  permit  the  testator's  niece,  who  was  married,  to  re- 
ceive the  rents  during  her  life,  for  her  separate  use.     Lord 
Kenyon  said,  that  whether   this   were    a   use    executed  in  the 
trustees  or  not,  must  depend  upon  the  intention  of  the  devisor. 

(a)  Broughton  v.  Langley,  2  Ld.  Rayrn.  S73.     (2  Salk.  679.)     Doe  v.  Biggs,  2  Taunt.  109. 
'  Kinch  r.  Ward,  2  Sim.  &  Stu.  409.)     2  Vent.  312. 

(b)  Nevil  v.  Saunders,  1  Vera.  415.  (c)  South  v.  Alleyne,  5  Mod.  101.  1  Salk.  228. 
{d)  Say  &  Sele  v.  Jones,  1  Ab.  Eq.  383.    3  Bro.  Pari.  Ca.  113. 


Title  XII.     Trust.     Ch.  I.  s.  20—22.  363 

This  provision  was  made  to  secure  to  a  feme  covert  a  separate 
allowance,  to  effectuate  which  it  was  essentially  necessary  that 
the  trustees  should  take  the  estate,  with  the  use  executed ;  for 
otherwise  the  husband  would  be  entitled  to  receive  the  profits, 
and  so  defeat  the  object  of  the  devisor.  The  Court  certified  that 
the  legal  estate,  by  way  of  use  executed  in  fee  simple,  vested  in 
the  trustees ;  that  construction  being  necessary  to  give  legal 
effect  to  the  testator's  intention  to  secure  the  beneficial  interest 
to  the  separate  use  of  the  feme  covert,  (a) 1 

21.  Where  lands  are  devised  to  trustees  in  trust  to  sell  or 
mortgage  them,  in  order  to  raise  money  for  payment  of  debts, 
and  subject  thereto  in  trust  for  a  third  person,  the  trustees  will 
take  the  legal  estate ;  for  otherwise  it  would  not  be  in  then- 
power  to  execute  the  trust. 

22.  A  person  devised  all  his  lands  to  five  trustees,  their  heirs 
and  assigns,  in  trust  that  they  and  their  heirs  should  in  the  first 
place,  by  the  rents  and  profits,  or  by  sale  or  mortgage  of  the 
premises,  raise  so  much  money  as  should  be  necessary  for  the 
payment  of  his  debts ;  after  payment  thereof,  he  gave  the  same 
to  his  trustees  for  500  years,  without  impeachment  of  waste, 
upon  several  trusts ;  and  then  proceeded  in  these  words  :  "  And 
from  and  after  the  determination  of  the  said  estate  for  years,  then 
I  give  and  devise  all  my  said  lands,  &c,  unto  my  said  trustees, 
their  heirs  and  assigns ;  my  mind  being,  that  my  said  trustees, 
shall  be  and  stand  seised  of  the  said  premises  in  trust  for  the 
several  uses,  &c,  after  declared ;  viz.  as  for  one  moiety  of  the 
same  premises  I  give  and  devise  the  same  to  the  use  and  behoof 
of  my  nephew  T.  Bagshaw,  for  the  term  of  his  natural  life,"  &c. 
One  of  the  questions  in  this  case  was,  whether  the  estate  devised 
to  the  nephew  was  a  legal  or  a  trust  estate.  Lord  Hardwicke 
held  that  the  devise  to  the  nephew  was  merely  a  trust  in  equity  ; 

(a)  Harton  v.  Harton,  7  Term  R.  652.  See  2  Swan.  391,  per  Lord  Eldon.  (Xevilr.  Saun- 
ders, 1  Vern.  415.  South  v.  Alleyne,  5  Mod.  101.  1  Salk.  228,  S.  C.  Bush  v.  Allen,  5  Mod. 
63.) 

1  So,  where  real  and  personal  estate  was  devised  in  trust  for  the  equal  use  and  benefit 
of  the  testator's  four  sisters  and  their  heirs  forever,  to  be  managed  as  the  trustees  should 
think  most  for  the  interest  of  each  of  the  parties,  two  of  the  sisters  being  femes  covert ; 
it  was  held  that  the  legal  title  remained  in  the  trustees,  it  being  necessary,  in  order  to 
enable  them  to  manage  the  property  as  they  might  think  most  conducive  to  the  interest 
of  the  cestuis  que  trust,  according  to  the  intent  of  the  testator.  Bass  v.  Scott,  2  Leigh. 
E. 256. 


364  Title  XII.     Trust.     Ch.  I.  s.  22—26. 

the  first  devise  being  to  the  trustees  and  their  heirs,  it  carried  the 
whole  fee  in  point  of  law.     Part  of  their  trust  was  to  sell  the 

whole  or  a  sufficient  part  for  payment  of  debts.  This 
387  *    would   have  carried  a  fee  by  construction  without  *  the 

word  heirs.  The  consequence  of  this  was,  that  here  being 
the  whole  fee,  in  law,  devised  to  the  trustees,  no  remainder  of  a 
legal  estate  could  be  limited  upon  it ;  and  T.  Bagshaw  took  only 
a  trust,  (a) 

23.  This  mode  of  construction  is  adopted  in  cases  of  deeds,  as 
well  as  in  that  of  devises. 

24.  Lord  Byron  being  tenant  for  life,  with  remainder  to  his 
son  in  tail,  they  suffered  recoveries,  and  conveyed  estates  in 
Lancashire  and  Nottinghamshire  to  the  use  of  trustees  and  their 
heirs,  in  trust  to  sell  the  Nottinghamshire  estate  for  payment  of 
debts.  As  to  the  Lancashire  estate,  in  trust  to  sell  it,  and  to 
apply  the  money  in  the  purchase  of  other  lands,  to  be  settled  on 
Lord  Byron  for  life,  remainder  to  his  son  in  fee  ;  with  a  proviso 
that  the  rents  should,  till  sale,  be  received  by  the  persons  who 
would  have  been  entitled  to  them,  if  no  recovery  had  been  suf- 
fered ;  it  was  held  that  the  use  of  the  Lancashire  estate  was 
executed  in  the  trustees :  that  as  to  the  proviso  that  the  rents,  till 
sale,  should  be  received  as  before,  that  was  nothing  more  than 
the  common  provision  in  such  cases,  and  did  not  carry  the  legal 
estate.(6) 

25.  It  is  now  settled  that  where  an  estate  is  devised  to  one,  for 
the  benefit  of  another,  the  Courts  will  execute  the  use  in  the 
first  or  second  devisee,  as  appears  best  to  suit  the  intention  of  the 
testator ;  from  which  it  follows  that  whenever  an  estate  is  devised 
to  trustees,  with  a  requisition  to  do  any  act,  to  which  the  seisin 
and  possession  of  the  legal  estate  are  necessary,  although  they  be 
directed  to  permit  the  rents  and  profits  to  be  received  by  another 
person,  still  that  person  will  only  be  entitled  to  a  trust  estate  ;  for 
otherwise  the  trustees  would  not  be  able  to  execute  the  trustee) 
•    26.  J.  B.  devised  all  his    real  and  personal  estate   to  three 

(n)  Bagshaw  v.  Spencer,  1    Ves.  142.      Collect.  Jur.  vol.  1.  378.     Wright  v.  Pearson, 
Feame,  Cont.  Rem.  187.    1  Eden,  119. 
{b)  Keene  v.  Deardon,  8  East,  248. 
(c)  Feame' s  Op.  422. 

1  See,  accordingly,  Tenny  v.  Moody,  3  Bing.  3  ;  Shapland  v.  Smith,  1  Bro.  Ch.  Cas. 

75,  Perkins's  cd. 


Title.  XII.     Trust.     Ch.  I.  s.  26—29.  365 

trustees,  their  heirs  and  assigns,  in  trust  to  pay  his  son  Isaac 
.£37  quarterly  ;  and  if  he  married  with  consent,  then  double  the 
sum :  if  he  should  have  any  children,  he  gave  the  residue  of  the 
rents  of  his  said  trust  estate,  to  be  applied,  during  the  life  of  his 
son,  for  the  education  of  such  child  or  children :  he  then  gave  I 
one  moiety  of  the  trust  estate  to  such  child  or  children  of  his  son 
as  he  should  leave,  and  the  other  moiety  to  the  child  or 
children  of  his  grandson  J.  D.  *  Lord  Talbot  said,  the  *  388 
whole  depended  on  the  testator's  intent,  as  to  the  contin- 
uance of  the  estate  devised  to  the  trustees ;  whether  he  intended 
the  whole  legal  estate  to  continue  in  them,  or  whether  only  for 
a  particular  time  or  purpose.  If  an  estate  were  limited  to  A  and 
his  heirs,  in  trust  for  B  and  his  heirs,  there  it  is  executed  in  B 
and  his  heirs.  But  where  particular  things  are  to  be  done  by 
the  trustees ;  as  in  this  case,  the  several  payments  that  were  to 
be  made  to  the  several  persons  ;  it  was  necessary  that  the  estate 
should  remain  in  them,  so  long  at  least  as  those  particular 
purposes  require  it.  (a) 

27.  Lands  were  devised  to  trustees,  upon  trust  that  they 
should,  every  year,  after  deducting  rates,  taxes,  repairs,  and 
expenses,  pay  such  clear  sum  as  should  remain  to  A  B.  Lord 
Thurlow  held  that  the  trustees,  being  to  pay  the  taxes  and 
repairs,  must  have  an  interest  in  the  premises ;  therefore  that  the 
legal  estate  was  vested  in  them,  (b) 

28.  A  person  devised  lands  to  trustees  and  their  heirs,  upon 
trust  to  take  and  receive  the  rents  and  profits  thereof,  and  to 
apply  the  same  for  the  subsistence  and  maintenance  of  his  son, 
during  his  life.  It  was  determined  that  the  son  had  only  a 
trust,  (c) 

29.  In  the  case  of  a  devise  to  trustees  for  particular  purposes, 
the  Courts  will  consider  the  legdb  estate  as  vested  in  the  trustees, 
as  long  as  the  execution  of  the  trust  requires  it,  and  no  longer ; 
and  will  therefore,  as  soon  as  the  trusts  are  satisfied,  consider  the 
legal  estate  as  vested  in  the  persons  who  are  beneficially  entitled 
to  it.1 

(a)  Chapman  v.  Blisset,  Forrest,  R.  145. 

(b)  Shapland  v.  Smith,  1  Bro.  C.  C.  75.    Fearne's  Op.  421.     Vide  2  Cox's  Rep.  145. 

(c)  Silvester  v.  Wilson,  2  Term  R.  444. 


1  In  New  York,  it  is  expressly  enacted,  that,  "  When  the  purposes  for  which  an  ex- 
press trust  shall  have  been  created  shall  have  ceased,  the  estate  of  the  trustees  shall 

31* 


366  Tttle  XII.     Trust.     Ch.  I.  s.  30—31. 

30.  Thus,  in  the  case  of  Say  and  Seele  v.  Jones,  the  legal 
estate  was  held  to  be  vested  in  the  trustees  during  the  life  of.  the 
married  woman.  But  upon  her  decease,  it  was  considered  as 
vested  in  the  heirs  of  her  body,  (a) 

31.  So,  where  a  person  devised  to  trustees  all  his  real  estates, 
arrears  of  rent,  and  a  bond  and  judgment;  in  trust,  out  of  the 
rents  and  profits  and  arrears  due,  to  pay  an  annuity  of  £50  to 
his  sister  H.  for  her  life,  and  another  annuity  of  £50  to  his  sister 
D.  for  life  ;  after  payment  thereof,  then  in  trust,  out  of  the  resi- 
due of  the  rents,  to  pay  to  his  brother  and  nephew  £800  in  trust 
for  the  benefit  of  the  children  of  another  brother.  After  pay- 
ment of  the  annuities,  and  the  sum  of  .£800,  he  devised  his 

estates  to  his  brother  W.  for  life,  &c.  .The  testator  fur- 
389  *     ther  *  gave  the  trustees  a  power  to  grant  building  and 

other  leases.  It  was  resolved,  that  the  trustees  took  the 
legal  estate  for  the  lives  of  the  annuitants ;  with  such  a  term  for 
years  in  remainder  as  was  necessary  to  raise  the  £800  ;  and  that, 

(a)  Ante,  s.  19. 

also  cease."  Rev.  St.  Vol.  II.  p.  15,  §  67,  3d  ed.  In  such  case  the  cestui  que  trust  may 
maintain  ejectment  in  his  own  name,  without  any  previous  conveyance  from  the  trustee. 
Welch  v.  Allen,  21  Wend.  147.     [Selden  v.  Vermilyea,  3  Corns.  525.] 

The  doctrine  in  the  text,  however,  has  been  subsequently  limited  and  restricted  to 
cases  not  inconsistent  with  the  language  and  intent  of  the  maker.  In  a  recent  case, 
the  rule,  as  now  understood,  was  thus  stated  by  Lord  Denman  : — ':  As  to  the  deter- 
mination of  the  trust  estate,  I  do  not  mean  to  throw  doubt  upon  the  cases  on  that  sub- 
ject ;  but  the  language  used  in  some  of  them  goes  too  far,  when  it  suggests  that,  if 
lands  be  devised  in  trust  for  particular  purposes,  the  estate  of  the  trustee  ceases  on  per- 
formance of  the  trusts,  or  when  they  can  no  longer  be  performed,  in  whatever  terms 
the  devise  may  have  been  framed.  Holroyd,  J.,  said  rightly — (see  Doe  dem.  Player  v. 
Nieholls,  1  B.  &  C.  344) — that,  where  there  are  no  words  in  the  will  which  give  the 
trustees  any  estate  beyond  the  time  during  which  the  trust  is  to  be  performed,  there  the 
case  falls  within  the  general  rule,  that  a  trust  estate  is  not  to  continue  beyond  the  period 
required  by  the  purposes  of  the  trust.  AriQ  that  must  mean  a  restricted  period,  and 
not  any  length  of  time  during  which  it  may  be  said  that  the  trusts  are  in  a  course  of 
performance.  In  Doe  dem.  Shelley  v.  Edlin,  4  A.  &  E.  582,  589,— [his  lordship  here 
observed  that,  although  the  observations  delivered  by  the  lord  chief  justice  in  that  judg- 
ment are  made  in  the  first  person  singular,  it  was  the  judgment  of  all  the  judges  who 
heard  the  case,  and  was  drawn  up  by  Mr.  Justice  Littledale,] — and  Doe  dem.  Cadogan 
v.  Ewart,  7  A.  &  E.  636,  666,  this  Court  narrowed  the  rule,  of  holding  the  trust  estate 
to  determine  after  the  time  for  performance  of  the  trusts,  in  the  manner  which  I  now 
suggest  as  the  proper  one, — namely,  to  the  case  in  which  that  restriction  is  consistent 
with  the  words  of  the  instrument,  and  the  apparent  intention  of  the  maker."  See  Doe 
v.  Davies,  1  Ad.  &  El.  437,  N.  S. 


Title  XII.     Trust.     Ch.  I.  s.  31—34.  367 

subject  thereto,  the  limitation  for  life  to  W.  took  effect  as  a  legal 

limitation,  (a) 

•  32.  But  where  lands  are  devised  to  trustees,  charged  ivith  the 
payment  of  debts,  upon  trust  for  a  third  person,  the  trustees  will 
not  take  the  legal  estate. 

33.  A  person  devised  his  real  estates,  and  also  his  personal 
estate,  to  trustees  and  their  heirs,  to  the  intent  that  they  should, 
in  the  first  place,  apply  his  personal  estate  in  payment  of  his 
debts ;  and  as  to  his  real  estates,  subject  to  his  debts,  he  devised 
the  same  to  R.  P.  for  and  during  his  life,  &c. 

The  Court  of  Common  Pleas  held  that  this  was  a  mere  devise 
charged  with  the  payment  of  debts ;  for  it  did  not  appear  that 
the  testator  intended  the  trustees  should  be  active  in  paying  the 
debts.  It  would  be  more  convenient  that  the  legal  estate  should 
be  vested  in  the  trustees :  but  this  was  only  an  argument  ab  in- 
convenient^  from  which  they  could  not  construe  the  testator  to 
have  said,  what  in  fact  he  had  not  said.  Qi)  x 

34.  Where  an  estate  is  conveyed  or  devised  to  trustees  and 
their  heirs,  upon  trust  to  pay  debts  generally,  or  debts  particularly 
specified,  and  after  payment  of  such  debts,  in  trust  for  A  B,  or 
in  trust  to  convey  such  parts  of  the  premises  to  A  B  as  shall 
remain  unsold ;  A  B  has  an  immediate  trust  estate  in  the  sur- 
plus, upon  the  execution  of  the  deed,  or  the  death  of  the  testator. 
For  in  cases  of  this  kind,  the  payment  of  the  debts  is  not  a  con- 
dition precedent,  which  must  be  performed  before  the  subsequent 
limitation  or  devise  can  take  effect ;  but  an  interest  commencing 
at  the  same  time,  and  concurrent  with  the  estate  given  to  the 
trustees.  Because  the  words,  "after  payment  of  debts,"  or 
"  when  the  debts  are  paid,"  only  denote  the  order  or  course  in 
which  the  several  interests  shall  take  place,  in  point  of  actual 
possession  and  perception  of  profits;  without  preventing  the 
subsequent  estates,  whether  legal  or  equitable,  from  being  vested 
in  interest,  at  the  same  time  with  those  which  are  prior  to  them 
in  point  of  limitation,  (c)  2 

(a)  Doe  v.  Simpson,  5  East,  102.    Doe  v.  Timins,  1  Barn.  &  Aid.  530.     Doe  v.  Bartlirop, 
5  Taunt.  383.    Doe  v.  Nicholls,  1  B.  &  C.  336. 

(b)  Kenrick  v.  Beauclcrck,  3  Bos.  &  Pull.  175. 

(c)  Collect.  Jur.  vol.  1.  214.    Tit.  36.  c.  8. 

1  See  Gregory  v.  Henderson,  4  Taunt.  772;  Shapland  v.  Smith,  1  Bro.  Ch.  Cas.  75, 
and  notes  by  Eden;  1  Sugd.  on  Vend.  309 — 314. 

2  It  is  said  that  as  the  Statute  of  Uses,  in  Virginia,  speaks  only  of  uses  raised  by 


368  Title  XII.     Trust     Ch.  I.  s.  35—37. 

35.  The  third  mode  of  creating-  a  trust  estate  arises  from  the 
answer  of  all  the  Judges  in  22  Eliz.  upon  a  question  put 

390  *  to  them  *  by  the  Lord  Chancellor,  that  where  a  term  for 
years  was  granted  to  A,  to  the  use  of,  or  in  trust  for  B,  the 
legal  estate  in  the  term  remained  in  A,  and  was  not  executed  in 
B  by  the  Statute  of  Uses.  For  the  words  of  the  statute  were : — 
"  Where  any  person  is  seised  to  the  use  of  another."  1  Whereas 
in  this  case,  A  is  not  seised,  not  having  a  freehold,  but  is  only 
possessed  of  the  term,  the  word  seised  being  only  applicable  to  a 
freehold  estate  ;  so  that  in  cases  of  this  kind,  the  person  to  whose 
use  the  term  was  declared,  was  driven  into  the  Court  of  Chancery; 
where  the  trustee  was  compelled  to  account  with  him  for  the 
rents  and  profits  of  the  term,  and  to  assign  it  to  him  when  re- 
quired. (a)f 

36.  By  the  statute  29  Cha.  II.  c.  3,  s.  7,  it  is  enacted,  "  That 
all  declarations  or  creations  of  trusts  or  confidences  of  any  lands, 
tenements,  or  hereditaments,  shall  be  manifested  and  proved  by 
some  writing-,^,  signed  by  the  party  who  is  by  law  enabled  to 
declare  such  trust,  or  by  his  last  will  in  writing ;  or  else  they 
shall  be  utterly  void,  and  of  none  effect." 

37.  A  declaration  of  trust  requires  no  particular  form,\\  pro- 
vided it  must  be  proved  or  manifested  in  writing ;  therefore  a 
letter  from  a  trustee,  disclosing  the  trust,  will  be  sufficient.  And 
in  a  modern  case  Lord  Alvanley,  M.  R.,  said  it  was  not  required 
by  the  statute  that  a  trust  should  be  created  by  writing ;  for  the 
words  of  the  statute  were  very  particular  in  the  clause  respecting 

(a)  Dyer,  369.  a.     Buc.  Read.  42.     Tit.  8.  c.  1. 


deed,  those  created  by  devise  are  not,  in  any  case,  executed  by  the  statute,  but  remain 
trusts,  as  at  common  law.  See  ante,  tit.  11,  ch.  3,  §  3,  note;  1  Lornax's  Digest,  188, 
196,  where  this  opinion  is  controverted  by  the  latter  author. 

1  As  the  statute  of  Virginia  avoids  the  use  of  the  word  "seised"  it  has  been  held  to 
embrace  terms  for  years; — 1  Tucker's  Comra.  pt.  2,  p.  251;  Tabb  a,  Baird,  3  Call, 
482; — an  opinion  which  is  ably  controverted  by  Judge  Lomax.  1  Lomax,  Dig.  196, 
197. 

[t  There  may  be  a  trust  of  a  rent,  as  well  as  of  land  ;  of  which  an  account  will  be 
given  in  Title  28.] 

[J  See  Leman  v.  Whitley,  4  Russ.  423.] 

[||  In  Weaver  v.  Maule,  2  Russ.  &  M.  97,  it  was  decided,  that  where  a  lord  of  a 
manor  admits  a  tenant  upon  the  trusts  of  an  indenture  referred  to  in  the  surrender,  he 
is  to  be  considered  as  consenting  to  those  trusts,  and  is  bound  by  them  upon  the  death 
of  the  trustee  without  an  heir.l 


Title  XII.     Trust.     Oh.  I.  s.  37—40.  369 

declarations  of  trust.  It  did  not  by  any  means  require  that  all 
trusts  should  be  created  only  by  writing  ;  but  that  they  should  be 
manifested  and  proved  by  writing  ;  plainly  meaning  that  there 
should  be  evidence  in  writing,  proving  that  there  was  such  a 
trust.  Therefore,  unquestionably  it  was  not  necessarily  to  be 
created  by  writing,  but  it  must  be  evidenced  by  writing;  then 
the  statute  was  complied  with,  and  the  great  danger  of  parol 
declarations,  against  which  the  statute  was  intended  to  guard, 
was  entirely  taken  away ;  it  must,  however,  be  proved  in  toto, 
not  only  that  there  was  a  trust,  but  what  it  was.  (a)1 

38.  *  Where  a  trust  is  confessed  in  an  answer  in  Chan-  *  391 
eery,  it  will  be  sufficient. 

39.  A  in  consideration  of  £80,  conveyed  land  to  B  abso- 
lutely. A  brought  a  bill  to  redeem.  B  by  his  answer  insisted 
that  the  conveyance  was  absolute  ;  but  confessed,  that  after  the 
£80  was  paid  with  interest,  it  was  to  be  in  trust  for  the  plaintiff's 
wife  and  children.  This  was  held  to  be  a  sufficient  declaration 
of  trust,  (b) 

40.  Besides   the   above-mentioned   direct   modes  of  creating 

(«)  Forster  v.  Hale,  3  Ves.  696.  (Movan  v.  Hays,  1  Johns.  Ch.  342.  Jackson  V.  Moore, 
6  Co  wen,  706.    Johnson  v.  Ronald,  4  Munf.  77.)     12  Ves.  74. 

(b)  Hampton  v.  Spencer,  2  Vern.  288.     Cottington  r.  Fletcher,  2  Atk.  155. 


1  The  statute  will  be  satisfied,  if  the  evidence  be  in  writing,  under  the  hand  of  the 
trustee,  however  informal,  and  however  long  subsequent  to  the  creation  of  the  estate. 
Thus,  a  letter,  signed  by  the  trustee,  together  with  a  paper  therein  referred  to,  though 
not  signed,  have  been  held  sufficient.  Forster  v.  Hale,  3  Ves.  696  ;  Tawney  v,  Crow- 
ther,  3  Bro.  Ch.  Cas.  161,  318,  (and  notes  by  Perkins,)  expounded  in  3  Ves.  713; 
Steere  v.  Steere,  5  Johns.  Ch.  1.  So,  if  acknowledged  in  the  trustee's  answer  in  Chan- 
cery ;  Hampton  v.  Spencer,  2  Vern.  288 ;  Nab  v.  Nab,  10  Mod.  404  ;  Ryall  v.  Ryall, 

I  Atk.  59,  per  Ld.  Hardwicke;  Cottington  v.  Fletcher,  2  Atk.  255  ;  Fisher  v.  Fields, 
10  Johns.  495  ;  or,  in  the  recitals  in  his  deed.  Deg  v.  Deg,  2  P.  Wms.  412.  But  it 
must  appear  on  the  face  of  the  writings  that  they  relate  to  the  subject-matter;  and  they 
must  disclose  the  precise  nature  of  the  trust,  or  Chancery  will  not  execute  it.  3  Ves. 
707,  per  Ld.  Alvanley.  The  evidence,  moreover,  must  all  be  in  writing,  without  resorting 
to  parol  evidence,  even  to  connect  different  writings  together.     Boydell  v.  Drummond, 

II  East,  142;  Abeel  v.  Radcliff,  13  Johns.  297  ;  'Freeport  v.  Bartol,  3  Greenl.  340. 
See  1  Greenl.  on  Evid.  §  266,  268  ;  Roberts  on  Frauds,  p.  101,  102  ;  Barrell  v.  Joy,  16 
Mass.  221  ;  Rutledgc  v.  Smith,  1  McCord,  Ch.  R.  119  ;  Arms  v.  Ashley,  4  Pick.  71  ; 
Parkhurst  v.  Van  Cortlandt,  1  Johns.  Ch.  274.  The  Statute  of  Frauds',  in  North  Caro- 
lina, Rev.  St.  1836,  ch.  50,  contains  no  provision  as  to  declarations  of  trust ;  which,  there- 
fore, stand  as  at  common  law,  and  may  be  proved  by  parol.  Foy  v.  Foy,  2  Hayw. 
131;  4  Kent,  Coram.  305,  n. ;  Lcwin  on  Trusts,  p.  30,31;  [Philbrook  v.  Delano,  29 
Maine  (16  Shep.)  410  ;  Cleveland  v.  Hallet,  6  Cush.403  ;  Rathbun  v.  Rathbun,  6  Barb. 
Sup.  Ct,  481 ;  Duke  of  Cumberland  v.  Graves,  9  lb.  595.] 


370  Title  XII.     Trust.     Ch.  I.  s.  40—42. 

trust  estates,  there  are  several  other  cases  where  trusts  arise  from 
the  evident  intention  of  the  parties,  and  the  nature  of  the  trans- 
action ;  which  are  enforced  in  equity,  and  usually  called  resulting' 
trusts,  or  trusts  by  implication.  These  are  expressly  saved  by  a 
clause  in  the  Statute  of  Frauds,  29  Cha.  II.  c.  3,  s.  8,  by  which  it 
is  provided:  "  That  where  any  conveyance  shall  be  made  of 
any  lands  or  tenements  by  which  a  trust  or  confidence  shall  or 
may  arise,  or  result  by  implication  or  construction  of  law,  or  be 
transferred  or  extinguished  by  an  act  or  operation  of  law,  then 
and  in  every  such  case,  such  trust  or  confidence  shall  be  of  the 
like  force  and  effect  as  the  same  would  have  been  if  this  statute 
had  not  been  made."  And  it  has  been  held  by  Lord  Cowper 
that  this  clause  must  relate  to  trusts  and  equitable  interests ; 
not  to  a  use,  which  is  now  a  legal  estate.  (a) 

41.  Where  a  contract  is  entered  into  for  the  purchase  of  a 
real  estate,  a  trust  immediately  results  to  the  purchaser ;  the  ven- 
dor becomes  a  trustee  for  him  till  a  conveyance  of  the  legal  estate 
is  made  ;  and  the  interest  of  the  vendor  becomes  personalty,  con- 
sisting merely  of  a  right  to  the  purchase-money,  (b) 1 

42.  Where  an  estate  is  purchased  in  the  name  of  one  person, 
and  the  consideration  is  given  or  paid  by  another,  there  is  a 
resulting  trust  in  favor  of  the  person  who  gave  or  paid  the  con- 
sideration, (c)  2 

(a)  1  P.  Wins.  112. 

(b)  1  Cha.  Ca.  39.  9  Mod.  78.  Ripley®.  Watenvorth,  7  Ves.  425.  (Waddington  a.  Banks, 
1  Brock.  97.     6  Leigh.  185.) 

(c)  (Dyer  v.  Dyer,  2  Cox,  92,  93.) 

I1  Astor  v.  L'Amoreux,  4  Sandf.  Sup.  Ct.  524  ;  Bowie  v.  Beny,  3  Md.  Ch.  Decis. 
547.]  But  if  one  contracts  for  the  conveyance  of  lands  to  him  on  the  payment  of  cer- 
tain sums  of  money  at  specified  times,  no  trust  results  in  his  favor  by  the  payment  of 
any  money,  unless  the  whole  purchase-money  is  paid.  Comer  v.  Lewis,  4  Shepl.  268. 
[The  whole  or  part  of  the  consideration  must  be  paid  before  a  trust  results.  Stephen- 
son v.  Thompson,  13  III.  186,  221,  227.] 

2  Lands  purchased  by  executors,  with  the  money  of  the  estate,  are  held  by  them  in 
trust  for  the  heirs.  Wallace  v.  Duffield,  2  S.  &  R.  521.  If  purchased  with  the  funds 
of  a  corporation,  by  its  agents,  in  their  own  names,  it  is  in  trust  for  the  corporation. 
Methodist  Church  v.  Wood,  5  Ham.  283.  If  the  purchaser  from  an  executor  obtains  a 
conveyance  of  more  land  than  he  is  entitled  to,  through  the  mistake  or  fraud  of  the 
executor,  and  without  payment,  he  holds  the  surplus,  in  trust,  for  the  persons  bene- 
ficially interested.  Anderson  v.  Nesbit,  2  Rawle,  114.  And  see  Ensley  v.  Balentine, 
4  Humph.  233  ;  [Lounsbury  v.  Purdy,  16  Barb.  Sup.  Ct.  376 ;  Work  v.  Work,  14  Penn. 
(2  Harris.)  31G;  Creed  v.  Lancaster  Bank,  1  Ohio  State  R.  1;  Williams  v.  Brown, 
14  111.  200  ;  14  Ibid.  94 ;  Russell  v.  Lode,  1  Iowa.  566  ;  Tarpley  v.  Poage,  2  Tex.  139  ; 


Title  XII.     Trust.     Ch.  I.  5.  43—44.  371 

43.  Thus  it  was  resolved  by  the  Court  of  Chancery  in  35  Cha. 
II.  that  where  a  man  bought  land  in  another's  name,  and  paid 
the  money,  it  would  be  a  trust  for  him  who  paid  the  money, 
though  no  deed  declaring  the  trust ;  for  the  statute  29  Cha.  II. 
did  not  extend  to  trusts  raised  by  operation  of  law.  (a) 

44.  Lord  Hardwicke  has  said,  that  where  a  purchase  is  made, 
the  purchase  money  being  paid  by  one,  and  the  conveyance 
taken  in  the  name  of  another,  there  was  a  resulting  trust 

for  the  *  person  who  paid  the  consideration.      This  was     *  392 
where  the  whole  consideration  moved  from  such  person. 
But  he  never  knew  it,  where   the   consideration   moved   from 
several  persons  ;  for  that  would  introduce  all  the  mischiefs  which 
the  Statute  of  Frauds  was  intended  to  prevent.1     Suppose  sev- 

(«)  Anon.  2  Vent.  361.  1  Vern.  109.  2  Atk.  71,  150.  (Foote  v.  Colvin,  3  Johns.  216. 
Jackson  v.  Stembergb,  1  Jobns.  Cas.  153.  Jackson  v.  Morse,  16  Johns.  197.  German  v. 
Gabbokl,  3  Binn.  302.     Jackson  v.  Matsdorf,  11  Johns.  91.) 

Long  v.  Steiger,  8  Ibid.  460.  Where  a  deed  was  taken  in  the  name  of  the  son,  and  the 
purchase-money  was  paid  by  him  and  his  father,  but  the  proportion  which  each  paid 
was  uncertain,  the  Court  refused  to  establish  a  resulting  trust  in  favor  of  the  father. 
Baker  v.  Yining,  30  Maine,  17  Shepl.  121;  Harper  v.  Phelps,  21  Conn.  257.  In  the 
absence  of  proof,  the  law  will  presume  that  they  contributed  equally.  Shoemaker  v. 
Smith,  11  Humph.  81.  A  purchase  of  real  estate  completed  on  the  credit  of  two,  but 
afterwards  paid  for  wholly  by  one  of  them,  does  not  of  itself  give  rise  to  a  resulting  trust. 
Brooks  v.  Fowle,  14  N.  H.  248.  Where  A  purchased  B's  land  at  an  execution  sale, 
and  the  purchase-money  was  furnished  to  A  for  the  benefit  of  B,  it  was  held  that  B  had 
an  equitable  estate  in  the  land.  Pegues  v.  Pegues,  5  Ired.  Ed.  418.  But  to  raise  a  re- 
sulting trust  where  an  estate  is  purchased  in  the  name  of  one  with  money  paid  by 
another,  the  payment  or  advance  of  money  must  precede  the  purchase.  Mahorner  v. 
Harrison,  13  Sm.  &  Mar.  53;  Smith  v.  Sackett,  5  Gilman,  534;  Buck  v.  Swazey,  35 
Maine,  (5  Bed.)  41.  Where  three  persons  advanced  money  for  the  purchase  of  land 
under  the  parol  agreement  that  the  fee  thereof  should  be  conveyed  to  two  of  them,  and 
that  the  third  should  have  wood  from  the  same  during  life,  and  the  conveyance  was  so 
made,  there  was  no  resulting  trust  to  the  third,  nor  did  he  have  any  legal  or  equitable 
estate  in  the  land.     Dow  v.  Jewell,  1  Foster,  (X.  H.)  470 ;  Hunt  v.  Moore,  6  Cush.  1.] 

Parol  declarations  of  the  nominal  purchaser,  made  at  or  after  the  sale,  are  not  suffi- 
cient to  raise  a  trust  in  favor  of  another,  without  any  allegation  of  payment  by  the 
cestui  que  trust,  or  of  fraud.  Sample  v.  Coulson,  9  Watts  &  Scrg.  62.  But  if  the  grantee 
obtained  the  deed  by  means  of  his  promise  to  hold  it  for  another,  this  is  sufficient  to 
create  a  trust,  on  the  ground  of  fraud,  and  may  be  proved  by  parol.  Miller  v.  Pearcc, 
0  Watts  &  Scrg.  97.  And  see  Hoge  v.  Hoge,  1  Watts,  163  ;  Jenkins  v.  Eldridge,  3  Story, 
R.  181. 

1  It  is  sufficient  if  a  definite  part  of  the  consideration  be  paid  by  the  cestui  que  trust, 
or  the  agreed  value  of  a  definite  proportion  of  the  whole  estate,  as,  one  moiety,  or  one 
third,  to  raise  a  resulting  trust  in  his  favor;  and  this,  whether  the  party  pajing  be  one 
person,  or  many.  It  is  only  where  the  proportion  is  indefinite,  that  no  trust  arises. 
Sayre  v.  Townsend,  15  Wend.  647  ;  White  v.  Carpenter,  2  Paige,  217,  241 ;  Wray  v. 


372  Title  XII.     Trust.     Ch.  I.  s.  44—45. 

eral  persons  agreed  to  purchase  an  estate  in  the  name  of  one, 
and  the  purchase-money  by  the  deed  appeared  to  be  paid  by  him 
only ;  he  did  not  know  any  case  where  such  persons  should  come 
into  the  Court  of  Chancery,  and  say,  they  paid  the  purchase- 
money  ;  but  it  was  expected  there  should  be  a  declaration  of 
trust,  (a) 

45.  In  all  cases  of  this  kind,  the  payment  of  the  money  must 
be  proved  by  clear  and  undoubted  evidence ; l  for  otherwise  a 

(a)  9  Mod.  235. 

Steele,  2  V.  &  B.  388  ;  Botsford  v.  Burr,  2  Johns.  Ch.  405 ;  Hays  v.  Wood,  4  Rand. 
272  ;  [Dwinal  v.  Veasie,  36  Maine,  (I  Heath,)  509  ;  Purdy  v.  Purdy,  3  Md.  Ch.  Decis. 
547.] 

This  evidence  may  be  deduced  from  expressions  in  the  purchase  deed ;  or  from  a 
memorandum  or  note  of  the  nominal  purchaser;  or  from  his  answer  to  a  bill  of  dis- 
covery ^r  from  papers  left  by  him,  and  discovered  after  his  death.  In  England,  accord- 
ing to  IPne  respectable  authoi'ities,  parol  evidence  is  not  admissible  against  the  answer 
in  Chancery  of  the  purchaser,  expressly  denying 'the  fact ;  nor  after  his  death,  against 
the  express  declaration  of  the  deed.  See  1  Sand,  on  Uses,  354.  But  the  latter  posi- 
tion is  denied,  and  parol  evidence  held  admissible.  See  2  Mad.  Ch.  141,  3d  ed. ; 
3  Sugd.  on  ATend.  256—259,  10th  ed. ;  Bench  v.  Bench,  10  Ves.  517.  But  the  grantor 
himself  cannot  set  up  a  resulting  trust  in  his  own  favor,  by  proving  that  he  had  an  in- 
terest in  the  purchase-money,  against  the  express  terms  of  his  deed.     Squire  v.  Harder, 

1  Paige,  494;  [Raybold  v.  Raybold,  20  Penn.  (8  Harris,)  308;  Pratt  v.  Ayer,  3  Chand. 
(Wise.)  265.] 

In  the  United  States,  it  seems  now  to  be  generally  conceded  that  parol  evidence, 
though  received  with  great  caution,  is  admissible,  in  all  cases,  to  establish  the  collateral 
facts,  (not  contradictor}-  to  the  deed,  unless  in  case  of  fraud,)  from  which  a  trust  may 
legally  result ;  and  that  it  makes  no  difference,  as  to  its  admissibility,  whether  the  nom- 
inal "purchaser  be  living  or  dead.     1  Greenl.  on  Evid.  §  266,  and  cases  there  cited; 

2  Story  on  Eq.  Jur.  §  1201,  note;  Boyd  v.  McBean,  1  Johns.  Ch.  586 — 590;  Jackman 
v.  Ringland,  4  Watts  and  Serg.  149  ;  Pritchard  v.  Brown,  4  N.  Hamp.  397  ;  Slaymaker 
v.  St.  John,  5  Watts,  27 ;  Buck  v.  Pike,  2  Eairf.  1  ;  Andrews  v.  Jones,  10  Ala.  R.  401, 
460.  [A  trust  resulting  by  implication  of  law  is  not  within  the  Massachusetts  Statute 
of  Frauds,  (Rev.  St.  ch.  59,  p.  30,)  but  may  be  proved  by  parol.  Peabody  v.  Tarbell, 
2  Cush.  226 ;  Bivermore  v.  Aldrich,  5  Cush.  431.  See  also  Brown  v.  Bunt,  37  Maine, 
(2  Heath,)  423  ;  Barron  v.  Barron,  24  Vt.  (1  Deane,)  375;  Reid  v.  Fitch,  11  Barb.  Sup. 
Ct.  399  ;  Wetherell  v.  Hamilton,  15  Penn.  (3  Harris,)  195 ;  Bloyd  v.  Carter,  17  Ibid.  216 ; 
18  Ibid.  134,  157,  283  ;  Hollis  v.  Hayes,  1  Md.  Ch.  Decis.  479  ;  Williams  v.  Van  Tuyl, 
2  Ohio,  N.  S.  336;  Coates  v.  Woodworth,  13  111.  654;  Nichols  v.  Thornton,  16  Ibid. 
113.  The  mere  declaration  of  a  purchaser  of  land  that  he  is  about  to  purchase  it  for 
another,  there  having  been  no  previous  arrangement  for  such  purchase,  will  not  raise  a 
trust,  for  the  benefit  of  the  latter.     Blyholder  v.  Gilson,  18  Penn.  (6  Harris,).  134.] 

But  it  is  universally  agreed  that  parol  evidence  is  admissible  to  rebut  a  resulting 
equity  or  trust.  Bamplugh  v.  Eamplugh,  1  P.  Wms.  113;  1  Sand,  on  Uses,  355; 
1  Greenl.  on  Evid.  C  296  ;  Jackson  v.  Feller.  2  Wend.  465 ;  Botsford  v.  Burr,  2  Johns. 
Ch.  405,  409;  Jackson  v.  Mills,  13  Johns.  463;  Malin  v.  Malin,  1  Wend.  625;  [Baker 
v.  Vining,  30  Maine,  (17  Shepl.)  121 ;  Baldwin  v.  Campfield,  4  Halst.  Ch.  R.  891.] 


Title  XII.     Trust.     Ch.  I.  s.  45—49.  373 

court  of  equity  will  not  interfere.  But  evidence  of  any  kind, 
even  parol  evidence,  is  admissible  to  rebut  a  resulting  trust,  and 
to  show  a  purchaser's  intention,  that  the  estate  should  belong  to 
the  person  in  whose  name  the  conveyance  was  taken  ;  upon  the 
same  principle  that  parol  evidence  is  admissible  to  rebut  a  result- 
ing use.  (a) 

46.  Thus,  in  a  case  in  1693,  the  counsel  contended  that  where 
there  was  an  express  trust  declared,  though  but  by  parol,  there 
could  be  no  resulting  trust;  for  resulting  trusts  were  saved 
indeed  by  the  Statute  of  Frauds,  but  only  as  they  were  before 
that  act.  Now  a  bare  declaration  by  parol,  before  the  act,  would 
prevent  any  resulting  trust.  The  Court  seemed  to  be  of  that 
opinion,  (b) 

47.  A  father  purchased  lands  in  the  names  of  his  younger  son 
and  nephew ;  but  in  the  conveyance  the  whole  purchaseTmoney 
was  mentioned  to  be  paid  by  the  father ;  who  took  the  profits 
during  his  life,  and  died,  leaving  the  younger  son  an  infant. 
The  eldest  son  brought  his  bill  against  the  younger  son  and  the 
nephew ;  insisting  that  the  money  being  mentioned  in  the  deed 
to  have  been  paid  by  the  father,  this  made  the  defendants 
trustees  for  the  father ;  consequently  for  the  plaintiff.  It  was 
resolved  that  parol  evidence  should  be  admitted  to  show  the 
intention  of  the  father,  that  this  conveyance  was  for  the  benefit 
and  advancement  of  the  younger  son  ;  because  it  concurred  with 
the  conveyance,  and  was  only  to  rebut  a  pretended  resulting 
trust,  (c) 

48.  It  was  formerly  doubted  whether  in  the  case  of  a  purchase 
made  by  a  trustee,  with  trust  money,  a  resulting  trust 
*would  arise  to  the  person  entitled  to  the  money;  because  *393 
that  would  be  to  contradict  the  deed  by  parol  evidence,  in 
direct  opposition  to  the  Statute  of  Frauds.  It  has,  however,  been 
since  determined,  that  evidence  aliunde  is  admissible  in  equity, 
to  show  that  the  purchase  was  made  with  trust  money.  And 
where  that  circumstance  has  been  clearly  proved,  a  trust  will 
result  to  the  person  entitled  to  the  money. 

49.  A  bill  was  brought  by  the  legatees  of  John  Ryal,  against 
the  executrix  and  heir  at  law  of  Jonathan  Ryal,  for  satisfaction 

(a)  Finch  v.  Finch,  15  Ves.  43.    Tit.  11.  c.  4.  (6)  Bellasis  v.  Compton,  2  Vern.  294. 

(c)  Lamplugh  v.  Lamplugh,  1  P.  Wms.  111.    Bartlctt  c.  Pickersgill,  1  Eden.  515. 

vol.  i.  32 


374  Title  XII.     Trust.     Ch.  I.  s.  49—51. 

out  of  his  assets,  and  as  against  the  heir  at  law,  to  have  satisfac- 
tion out  of  an  estate  purchased  by  Jonathan  Ryal,  as  the  plaintiff 
insisted,  with  the  assets  of  John  Ryal,  the  original  testator. 
The  defendant,  the  executrix,  admitted,  that  as  to  one  particular 
estate,  it  appeared  by  her  testator's  papers,  that  it  was  purchased 
with  £250  of  the  testator's  money.  Proof  was  read  that 
Jonathan  Ryal,  after  the  testator's  death,  purchased  several 
estates,  and  before  that  time  was  a  poor  person,  not  able  to 
pay  for  them  out  of  his  own  money.  The  counsel  for  the  plain- 
tiff insisted  that  the  heir  at  law  was  to  be  considered  as  a  trustee 
for  them,  as  far  as  the  estate  appeared  to  be  purchased  with  the 
assets  of  John  Ryal.  On  the  other  side  it  was  contended  that 
money  could  not  be  followed  into  land. 

Lord  Hardwicke  said,  the  Court  had  been  very  cautious  in 
following  money  into  land  ;  but  had  done  it  in  some  cases.  No 
one  would  say  but  the  Court  would,  if  it  was  actually  proved 
that  the  money  was  laid  out  in  land.  The  doubt  with  the 
Court  in  these  cases  had  been  on  the  proof.  There  was  difficulty 
in  admitting  proof;  parol  proof  might  let  in  perjury  ;  but  it  had 
always  been  done,  when  the  fact  had  been  admitted  in  the  answer 
of  the  person  laying  it  out.  If  the  executor  of  John  Ryal  had 
been  a  party,  and  admitted  it,  there  would  have  been  no  doubt ; 
but  the  admission  was  by  his  representative,  which,  though  it 
did  not  bind  the  heir,  was  ground  for  inquiry.  The  way  of 
charging  the  heir  was  by  considering  him  as  a  trustee ;  as  when 
lands  were  purchased  by  one,  in  the  name  of  another,  it  was  a 
resulting  trust  by  law,  and  out  of  the  statute  ;  and  upon  inquiry 
a  little  would  do  to  make  it  a  charge  pro  tanto.  It  was  referred 
to  the  Master  to  inquire  whether  the  estate  was  purchased  with 
£250  of  the  testator's  money,  or  not.  (a) 

50.  Although  a  trustee  for  a  purchase  should  buy  land, 
394*     yet  *it  will  not  be  liable  to  the  trust,  unless  there  are 
circumstances   affording   a  strong   presumption  that  the 
land  was  bought  with  the  trust  money. 

51.  (John  Lockyer  devised  his  estate  to  his  brother  Thomas, 
in  trust,  to  preserve  it  till  his  son  should  arrive  to  twenty-one, 
and  then  to  invest  it,  and  the  accruing  rents,  Sfc,  in  lands,  and 
settle  them  on  the  son  in  fee.    The  estate  was  real  and  personal. 

(a)  Ryal  r,  Ryal,  Amb.  413. 


Title  XII.     Trust.     Ch.  I.  5.  51—54.  375 

The  testator  died  in  1734.  The  cestui  que  trust  came  of  age 
in  1749  ;  devised  all  his  estate  to  his  wife  in  1759 ;  and  died  in 
1765.  The  trustee  purchased  several  estates  in  his  own  name, 
from  time  to  time,  before  the  death  of  his  son  and  afterwards, 
and  died  in  1785.  The  son's  widow  filed  a  bill  for  execution  of 
the  trust,  and  for  an  account  of  rents,  &c,  and  prayed  that  any 
deficiency  in  the  latter  might  be  made  up  out  of  the  remaining 
real  estates  of  the  trustee,  he  having  left  no  personalty.  The 
heir  at  law  resisted  this,  on  the  ground  that  the  estates  had  not 
been  purchased  with  the  trust  money ;  and  as  to  so  much  of  the 
rents  as  accrued  subsequent  to  the  making  of  the  son's  will,  in 
1759,  it  was  to  be  taken  as  real  estate,  being  money  directed  to 
be  laid  out  in  land,  and  so  did  not  pass  by  the  will,  it  being  sub- 
sequently acquired.) 

Lord  Rosslyn  declared  that  the  plaintiffs  had  no  lien  on  the 
estates  purchased  by  T.  Lockyer ;  being  creditors  by  simple  con- 
tract only.  If  there  had  been  any  ground  to  presume  that  the 
purchase  had  been  made  with  the  trust  money,  it  would  have 
been  otherwise.  On  a  bill  of  review,  the  decree  was  affirmed 
by  Lord  Eldon.  (a) 

52.  Where  the  legal  estate  in  lands  is  conveyed  to  a  stranger, 
without  any  consideration,  (or  declaration  of  use  to  the  grantee,) 
there  arises  a  resulting  trust  to  the  original  owner ;  in  conformity 
to  the  old  doctrine,  that  where  a  feoffment  was  made  without 
consideration,  the  use  resulted  to  the  feoffor,  (b)  1 

53.  The  Duke  of  Norfolk  executed  a  grant  of  the  next  avoid- 
ance of  a  church  to  a  clergyman,  who  was  much  employed  by 
him ;  but  the  grantee  knew  nothing  of  it ;  and  being  examined 
in  a  cause,  deposed  that  he  did  not  purchase  it  of  the  duke.  It 
was  decreed  to  be  a  resulting  trust  for  the  grantor,  there  being 
no  trust  declared,  (c) 

54.  In  the  case  of  voluntary  settlements  and  wills,  if  there  is 

(n)  Perry  v.  Phelips,  1  Ves.  251.     4  Ves.  108.     17  Ves.  173.        (6)  Tit.  11.  c.  4.  s.  16. 
(c)  Norfolk  v.  Browne,  1  Ab.  Eq.  381.    Prec.  in  Cha.  80. 


-  [l  Mere  want  of  consideration  in  a  deed  will  not  of  itself  alone  raise  a  resulting 
trust.  Philbrook  v.  Delano,  29  Maine,  (16  Shep.)  410.  The  presumption  of  law,  where 
an  absolute  deed  purports  to  have  been  made  for  a  good  or  valuable  consideration  paid 
by  the  grantee,  is  that  the  estate  is  held  by  him  for  his  own  use,  and  this  presumption 
cannot  be  rebutted  by  parol  evidence,  ib.  See  Graves  v.  Graves,  9  Foster,  (N.  H.) 
129.] 


376  Title  XII.     Trust.     Ch.  I.  s.  54—57. 

wo  declaration  of  the  trust  of  a  term,  it  results  to  the  settlor; 
otherwise  where  it  is  a  settlement  for  a  valuable  consideration, 
and  in  the  nature  of  a  contract  for  the  benefit  of  a  wife  or 
children,  (a)  1 

55.  Where  the  legal  estate  in  lands  is  conveyed  to  a  trustee, 

and  a  trust  is  declared  as  to  part  only,  nothing  being  said 
395*     of  *the  rest;  what  remains  undisposed  of,  results  to  the 
original  owner.  (6) 

56.  Lord  Foley  devised  his  estates  to  trustees  for  a  term  of 
ninety-nine  years,  remainder  to  his  eldest  son  for  life,  remainder 
to  his  first  and  other  sons  in  tail,  remainder  to  his  second  son 
in  the  same  manner.  The  trust  of  the  term  for  years  was  to 
pay  off  certain  scheduled  debts,  and  to  make  an  annual  allow- 
ance to  his  two  sons  for  their  support.  The  scheduled  debts 
being  stated  to  be  paid,  a  bill  was  filed  by  other  creditors  of  the 
sons  of  the  testator,  against  the  trustees,  praying  that  the  term 
might  be  declared  to  be  attendant  on  the  inheritance,  and  the 
trustees  restrained  from  setting  up  the  term  to  defeat  any  eject- 
ment or  other  remedy  which  the  plaintiffs  might  be  advised  to 
pursue  for  the  recovery  of  their  debts.  Lord  Thurlow  said,  the 
rule  of  law  was,  that  where  the  trusts  of  a  term  were  exhausted, 
a  trust  resulted,  for  want  of  a  further  disposition,  to  the  legal 
tenants.  In  his  judgment,  these  must  be  resulting  trusts,  and, 
therefore,  must  go  to  the  tenant  for  life,  (c) 

57.  In  the  same  manner,  where  the  whole  of  an  estate  is  con- 
veyed for  particular  purposes,  or  on  particular  trusts  only,  which, 
by  accident,  or  otherwise,  cannot  take  effect,  a  trust  ivill  result  to 
the  original  owner,  or  his  heir ;  as  where  a  testator  devises  real 
estates  to  trustees,  in  trust  to  sell,  and  to  apply  the  money  in  a 
particular  manner;  and  where  such  purpose  cannot  be  effected, 
the  fund,  though  money,  will  be  considered  as  land,  and  result  to 
the  heir,  (d) 

(a)  1  Atk.  191.  (b)  Lloyd  v.  Spillet,  2  Atk.  150. 

(c)  Davidson  v.  Foley,  2  Gro.  R.  203.  Sidney  v.  Shelly,  19  Ves.  352.  Habergharn  v.  Vin- 
cent, 2  Ves.  jun.  204. 

(d)  Prec.  in  Cha,  162,  541.     3  P.  Wins.  20.     Gravenor*.  Hallum,  Amb.  643. 

1  Where  a  (laughter's  portion  was  charged  on  her  father's  land,  and  she,  at  his  re- 
quest, had  released  her  interest  in  the  land,  to  enable  him  to  make  a  clean  settlement 
thereof  upon  his  son  ;  it  was  held  that  if  this  were  done  by  her  without  any  considera- 
tion, there  would  be  a  resulting  trust  in  the  father,  whereby  he  should  be  chargeable  to 
the  daughter  for  so  much  money.    Lady  Tyrrell's  case,  Freem.  304,  (by  Hovenden.) 


Title  XII.     Trust,     Ch.  I.  s.  58—60.  377 

58.  A  woman  devised  her  real  and  personal  estate  to  trustees, 
in  trust,  to  sell  and  pay  debts  and  legacies  ;  and  to  pay  the  residue 
to  five  persons,  to  be  equally  divided  between  them.  One  of  the 
residuary  legatees  died  in  the  lifetime  of  the  testatrix,  by  which 
her  legacy  became  lapsed.  It  was  decreed  by  Lord  Bathurst, 
that  this  was  a  resulting  trust,  as  to  the  share  of  the  person 
who  died  in  the  lifetime  of  the  testatrix,  for  the  benefit  of  the 
heir,  (a) 

59.  The  rule  that  where  lands  are  devised  for  a  particular 
purpose,  what  remains,  after  that  purpose  is  satisfied,  results  to 
the  heir,  admits  of  several  exceptions. 

60.  R.  Smith  devised  an  advowson  to  Grace  Smith,  willing 
and  desiring  her  to  sell  and  dispose  of  the  same  to  Eton  College  ; 
and,  on  their  refusal,  to  Trinity  College,  Oxford,  &c.    Soon 

after  *  the  death  of  the  testator,  Grace  Smith  presented  a  *  396 
person  to  the  living ;  upon  which  the  heirs  at  law  of  the 
testator  filed  their  bill,  praying  that  the  bishop  might  be  enjoined 
from  accepting  the  presentee  of  Grace  Smith  ;  insisting  that  the 
testator  did  not  intend  the  then  avoidance  should  go  to  Grace 
Smith  ;  but  that  she  ought  to  be  considered  altogether  as  a  trus- 
tee for  the  heirs  at  law  of  the  testator.  Lord  Hardwicke  said, 
the  general  question  was,  whether  there  was  a  resulting  trust  or 
not ;  on  the  first  hearing,  he  inclined  to  think  there  was,  but  he 
had  changed  his  opinion  entirely.  The  general  rule,  that  where 
lands  were  devised  for  a  particular  purpose,  what  remained  re- 
sulted, admitted  of  several  exceptions.  If  J.  S.  devised  lands  to 
A  to  sell  them  to  B,  for  the  particular  advantage  of  B,  that 
advantage  is  the  only  purpose  to  be  served,  according  to  the  in- 
tent of  the  testator  ;  and  to  be  satisfied  by  the  mere  act  of  selling, 
let  the  money  go  where  it  will.  Yet  there  was  no  precedent  of 
a  resulting  trust  in  such  a  case.  Nor  was  there  any  warrant  from 
the  words  or  intent  of  the  testator  to  say,  the  devise  severed  the 
beneficial  interest,  but  was  only  an  injunction  on  the  devisee  to 
enjoy  the  thing  devised  in  a  particular  manner.  If  A  devised 
lands  to  J.  S.,  to  sell  for  the  best  price  to  B,  or  to  lease  for  three 
years  at  such  a  fine,  there  was  no  resulting  trust.  So  that  the 
devise  here  amounted  to  no  more  than  this : — The  testator  gave 
the  advowson  to  G.  Smith,  but  if  such  or  such  a  college  would 

(a)  Digby  v.  Legard,  3  P.  Wms.  22,  n.    Ackroyd  e.  Smithson,  1  Bro.  K.  503, 2d  edit. 

32* 


378  Title  XII.     Trust.     Ch.  I.  5.  60—63. 

buy  it,  then  he  laid  an  injunction  upon  her  to  sell ;  therefore, 
there  were  two  objects  of  the  testator's  benevolence,  namely, 
Grace  Smith,  and  the  colleges,  (a) 

61.  Where  a  person  makes  a  conveyance  of  the  legal  estate  to 
trustees,  upon  such  trusts,  and  for  such  intents  and  purposes  as 
he  shall  appoint,  and  never  makes  an  appointment,  there  will  be 
a  resulting-  trust  to  him  and  his  heirs.  For  the  trust  in  equity 
must  follow  the  rules  of  law  in  the  case  of  a  use.  (b) 

62.  It  has  been  long  settled,  that  where  a  trustee  takes  a  re- 
newal of  a  lease  in  his  own  name,  the  renewed  lease  shall,  in 
equity,  be  subject  to  the  former  trust.  This  doctrine  is  founded 
on  general  policy  to  prevent  fraud ;  for,  as  the  trustee's  situation, 
in  respect  to  the  estate,  gives  him  access  to  the  landlord,  it  would 
be  dangerous  to  permit  him  to  make  use  of  that  circumstance  for 
his  own  benefit,  (c)  ' 

63.  A  lease  of  the  profits  of  Romford  market  was  de- 
397  *  vised  to  a  *  trustee,  in  trust,  for  an  infant ;  before  the 
expiration  of  the  term,  the  trustee  applied  to  the  lessor 
for  a  renewal,  for  the  benefit  of  the  infant,  which  he  refused,  in 
regard  that  it  being  only  the  profits  of  a  market,  there  could  be 
no  distress  ;  and  the  only  security  for  payment  of  the  rent  would 
be  a  covenant,  which  the  infant  could  not  enter  into.  The 
trustee  then  took  a  lease  for  his  own  benefit.  It  was  decreed  by 
Lord  King  that  the  lease  should  be  assigned  to  the  infant ;  that 
the  trustee  should  account  for  the  profits,  since  the  renewal,  and 
be  indemnified  from  the  covenants  in  the  lease.  He  said  he 
must  consider  this  as  a  trust  for  the  infant ;  for  if  a  trustee,  on  a 

(a)  Hill  v.  Epis.  London,  1  Atk.  618.     King  v.  Dennison,  1  Ves.  &  Beam.  260. 
(6)  Fitzg.  223.     Clere's  case,  tit.  11.  c.  4. 
(c)  1  Cha.  C.  191.    Palmer  v.  Young,  1  Vern.  276. 

1  It  is  a  settled  doctrine  of  Equity,  that  where  a  trustee,  or  other  person,  standing  in 
a  fiduciary  relation,  obtains  possession,  or  otherwise  makes  a  profit  out  of  any  transac- 
tions within  the  scope  of  his  authority,  that  possession  or  profit  will  belong  to  the  cestui 
que  trust ;  and  the  trustee  will  be  compelled  to  convey  accordingly.  See  Story  on 
Equity  Jur.  Vol.  I.  §  321,  322,  Vol.  II.  §  1261,  1262,  1263,  1265  ;  4  Kent,  Comm.  438  ; 
Arnold  v.  Brown,  24  Pick.  96  ;  Morgan  v.  Boone,  4  Munr.  297 ;  Holridgc  v.  Gillespie, 
2  Johns.  Ch.  30.  In  case  of  the  renewal  of  a  lease,  the  additional  term  is  said  to  come 
of  the  old  root,  and  to  be  of  the  same  nature,  and  subject  to  the  same  equity.  Eake- 
straw  v.  Brewer,  2  P.  Wms.  511.  And  see  Manlove  v.  Bale,  2  Vern.  84 ;  Pickering  v. 
Vowles,  1  Bro.  Ch.  Cas.  197,  and  note  (1,)  by  Perkins  ;  Milner  v.  Harewood,  18  Ves. 
274. 


Title  XII.     Trust.     Ch.  I.  s.  63—67.  379 

refusal  to  renew,  might  have  a  lease  to  himself,  few  trust  estates 
would  be  renewed  by  the  cestui  que  trust.  That  the  trustee 
should  rather  have  let  it  run  out,  than  have  taken  a  lease  himself. 
It  might  seem  hard  that  the  trustee  was  the  only  person  of  all 
mankind,  who  could  not  have  the  lease  ;  but  it  was  very  proper 
that  rule  should  be  strictly  pursued,  and  not  in  the  least  relaxed. 
For  it  was  very  obvious  what  would  be  the  consequence  of 
letting  trustees  take  leases,  on  a  refusal  to  renew  to  the  cestui 
que  trust,  (a) 

64.  This  doctrine  has  been  extended  to  the  case  of  persons 
having-  only  a  particular  and  limited  interest  in  a  leasehold 
estate. 

65.  Thus,  where  a  tenant  for  life  of  a  crown  lease,  under  a 
marriage  settlement,  got  a  reversionary  renewal  of  the  lease  ;  it 
was  decreed  by  Sir  T.  Sewell,  M.  R.,  that  it  should  go  to  the 
uses  of  the  settlement ;  and  the  decree  was  affirmed  by  Lord 
Camden,  (b) 

66.  Where  any  fraud  is  committed  in  obtaining  a  conveyance 
of  real  property,  the  grantee  in  such  conveyance  will  be  consid- 
ered, in  equity,  as  a  trustee  for  the  person  who  has  been  de- 
frauded, (c) 

67.  Where  a  father  purchases  lands  in  the  name  of  his  infant 
child,  without  any  declaration  of  trust,  and  takes  the  profits 
during  the  minority  of  the  child,  such  purchase  will  be  consid- 
ered, in  equity,  as  an  advancement  for  the  child,  and  not  as  a 
trust  for  the  father.  Because,  between  a  father  and  his  child, 
blood  is  a  sufficient  consideration  to  raise  a  use.  And  herein  the 
law  of  trusts  does,  as  it  ought  to  do,  agree  with  the  law  of  uses. 
For,  if  before  the  Statute  27  Hen.  VIIL,  a  father  had  made  a 
feoffment  to  his  son,  without  any  consideration,  no  use 
would  have  *  resulted  to  the  father,  because  blood  was  a  *  399 
sufficient  consideration  to  have  vested  the  use  in  the  son. 
Besides,  as  a  father  is  bound  by  the  law  of  nature  to  provide  for 
his  child,  the  purchasing  in  his  name  will  be  construed  in  a  court 
of  equity  to  be  a  performance  of  that  obligation  ;  and  the  taking 

(«}  Keech  v.  Sandford,  Sel.  Ca.  in  Ch.  61.    Blewett  v.  Millet,  7  Bro.  Pari.  Ca.  307.    Kilick 
v.  Flexney,  4  Bro.  C.  C.  161.  James  v.  Dean,  11  Ves.  363.  Fitzgibbon  v.  Scanlan,  1  Dow,  261. 

(b)  Taster  v.  Marriot,  Amb.  668.  734.    Lee  r.  Vernon,  5  Bro.  Pari.  Ca.  10. 

(c)  2  Atk.  150. 


380  Title  XII.     Trust.    Ch.  I.  s.  67—69. 

of  the  rents  during  the  minority  of  the   child,  only  implies   that 
the  father  acted  as  guardian  to  his  child,  (a)  2 

68.  J.  Mumma  purchased  a  copyhold  in  the  name  of  his  eldest 
son,  an  infant  of  about  eleven  years  old,  laid  out  ,£400  in  im- 
provements, paid  the  purchase  money  and  the  fines,  and  enjoyed 
it  during  his  life.  He  surrendered  to  the  use  of  his  will,  devised 
it  to  his  wife  for  life,  remainder  to  his  younger  children,  and 
made  other  provisions  for  his  eldest  son.  Upon  the  death  of  the 
father,  the  eldest  son  recovered  this  copyhold  in  ejectment.  The 
widow  brought  a  bill  to  be  relieved  upon  the  principle  that  the 
eldest  son  was  a  trustee  for  the  father.  Lord  Chancellor  Jefferies 
declared,  that  as  the  eldest  son  was  but  an  infant  at  the  time  of 
the  purchase,  though  the  father  did  enjoy  during  his  life,  it  must 
be  considered  as  an  advancement  for  the  son,  and  not  a  trust  for 
the  father,  (b) 

69.  In  the  case  of  Lamplugh  v.  Lamplugh,  it  was  resolved, 
that  if  the  purchase  had  been  made  in  the  younger  son's  name 
only,  it  had  been  plainly  an  advancement  for  him  and  no  trust. 
That  the  case  did  not  differ,  in  regard  the  persons  named  by 
him  did  disclaim ;  especially  since  prudential  reasons  might  be 
given  why  those  persons  were  joined, — namely,  that  they  might 
help  and  protect  the  infant  younger  son ;  also  to  prevent  the 
estates  descending  to  a  remote  relation,  in  case  the  younger  son 
died  before  his  father.  For  in  such  case  a  court  of  equity  would 
have  said,  if  the  father  were  to  come  for  the  estate,  though  this 
would  have  been  an  advancement,  in  case  the  younger  son  had 
lived  to  have  enjoyed  it,  yet  the  younger  son  dying,  the  trustee 
should,  in  equity,  have  conveyed  it  back  to  the  father.  And 
this  might  be  the  use  and  intention  of  naming  these  trustees. 
Besides,  the  younger  son  being  but  eight  years  old,  was  unfit  to 
be  a  trustee,  therefore  must  be  intended  to  have  been  named  for 
his  own  benefit,  (c) 

(«)  Grey  v.  Grey,  1  Cba.  C.  296.    Finch,  B.  341. 

(b)  Mumma  v.  Mumma,  2  Vera.  19.  (c)  (1  P.  Wms.  111.) 


1  Whether  a  purchase  hy  a  father,  in  the  name  of  his  infant  child,  is  to  be  deemed 
an  advancement  to  the  child,  or  a  resulting  trust  to  the  father,  is  a  question  of  inten- 
tion, susceptible  of  proof  by  parol  testimony,  where  such  testimony  is  not  contradictory 
to  the  deed.  Thus,  where  B  executed  a  deed  of  conveyance  of  a  farm  to  K,  an  infant 
daughter  of  A,  for  a  valuable  and  full  consideration,  recited  as  paid  by  A,  in  whose 


Title  XII.     Trust.    Ch.  I.  s.  70—72.  381 

70.  A  father  purchased  copyhold  lands  in  his  son's  name,  who 
was  then  eighteen  years  of  age,  and  continued  in  posses- 
sion till  his  death.     *Lord  Hardwicke, — "  I  am  of  opinion     *400 
that  it  should  be  considered  as  an  advancement  for  the 

son,  and  found  my  opinion  greatly  on  the  case  of  Mumma  v. 
Mumma ;  and  though  two  receipts  are  produced  under  the  son's 
hand,  for  the  use  of  the  father,  I  think  that  will  not  alter  the 
case ;  for  the  son,  being  then  under  age,  could  give  no  other  re- 
ceipt in  discharge  of  the  tenants,  who  held  by  lease  from  the 
father.  And  in  this  case,  I  am  of  opinion  that  parol  evidence 
may  be  admitted,  though,  indeed  improper,  when  offered  against 
the  legal  operation  of  a  will,  or  an  implied  trust ;  but  here  it  is 
in  support  of  law  and  equity  too."  (a) 

71.  A  purchase  by  a  father,  in  his  own  name  and  that  of  his 
son,  has,  in  some  cases,  been  deemed  an  advancement  for  the  son, 
not  a  trust  for  the  father.  But  this  doctrine  has  been  altered ; 
and  it  has  been  held  that  in  such  a  case  a  moiety  of  the  estate 
will  be  subject  to  the  father's  debts,  (b) 

72.  A  father  made  a  purchase  of  land  in  his  own  name,  and 
that  of  his  eldest  son,  and  their  heirs ;  and  a  similar  purchase  in 
his  own  name,  and  that  of  his  younger  son.  The  father  paid  the 
purchase-money,  and  continued  in  possession  till  the  time  of  his 
death.  A  judgment  creditor  of  the  father's  brought  his  bill  to 
have  satisfaction  of  his  debt  out  of  those  estates.  It  was  insisted 
that  the  sons  took  them  to  their  own  use  as  an  advancement, 
and  were  not  trustees  for  their  father.  Lord  Hardwicke  said, — 
The  general  rule  had  been  admitted,  and  had  been  long  the  doc- 
trine of  the  Court,  that  notwithstanding  the  father  paid  the  whole 

(a)  Taylor  v.  Taylor,  1  Atk.  380.     Dyer  v.  Dyer,  2  Cox's  R.  92. 
(6)  Scroop  v.  Scroop,  1  Cha.  Ca.  27. 


possession  the  deed  remained ;  he  continuing  to  occupy  the  land  for  more  than  thirty 
years,  until  his  death ;  it  appearing,  by  parol  testimony,  which  was  held  admissible, 
that  the  deed  was  taken  in  the  daughter's  name  for  the  purpose  of  avoiding  some 
expected  difficulties  to  the  father,  with  the  understanding  that  when  he  should  be  rid 
of  them,  he  should  surrender  this  deed  and  take  another  directly  to  himself;  it  was 
held  not  an  advancement  to  the  daughter,  but  a  resulting  trust  to  the  father.  Jackson 
v.  Matsdoif,  11  Johns.  91.  And  see  Prankard  v.  Prankard,  1  Sim.  &  Stu.  1.  To  repel 
the  presumption  of  an  intended  advancement,  the  evidence  of  a  different  intention  on 
the  part  of  the  father  must  be  contemporaneous  with  the  purchase.  Murlcss  v.  Frank- 
lin, 1  Swanst.  13.  [Douglass  v.  Brice,  4  Rich.  Eq.  322;  Cartwright  v.  Wise,  14  111. 
417  ;  Shepherd  v.  White,  10  Texas,  72.] 


382  Title  XII.     Trust     Ch.  I.  s.  72. 

money,  yet  if  the  purchase  was  made  in  the  name  of  a  younger 
son,  the  heir  of  the  father  should  not  insist  it  was  a  trust  for  the 
father.  But  this  case  differed  from  that  rule,  or  any  other  that 
he  remembered ;  and  if  he  could  find  any  material  difference,  he 
should,  in  his  own  judgment,  be  inclined  to  relieve  the  creditor. 
For  though  it  might  be  proper  stare  decisis ;  yet,  he  thought,  the 
case  had  gone  far  enough  in  favor  of  advancements,  and  he  ought 
not  carry  it  farther.  It  must  be  admitted  that  in  some  cases 
which  had  been  before  the  Court,  the  father  had  continued  in 
possession,  where  the  purchase  had  been  made  singly  in  the 
name  of  the  son,  and  yet  held  an  advancement  for  the  son ;  and 
for  this  reason,  because  the  father  was  the  natural  guardian  of 

the  sons  during  their  minority.  Here  the  purchase  was 
401*     in  *the  names  of  the  father  and  sons  as  joint-tenants; 

now  this  did  not  answer  the  purpose  of  an  advancement, 
for  it  entitled  the  father  to  the  possession  of  the  whole  till  a 
division,  and  to  a  moiety  absolutely,  even  .after  a  division ;  be- 
sides the  father's  taking  a  chance  to  himself  of  being  a  survivor 
of  the  other  moiety.  If  the  son  had  died  during  his  minority,  the 
father  would  have  been  entitled  to  the  whole  by  survivorship ; 
and  the  son  could  not  have  prevented  it  by  severance,  he  being 
an  infant.  Suppose  a  stronger  case,  that  the  father  had  taken  an 
estate  by  purchase  to  himself  for  life,  with  remainder  to  his  son 
in  fee, — should  this  prevail  against  the  creditors  ?  No,  certainly  ; 
for  the  defendant's  father  having  the  profits  for  life,  and  the  son 
only  a  remainder,  the  estate  would  have  been  liable.  A  material 
consideration  for  the  plaintiff  was,  that  the  father  might  have 
other  reasons  for  purchasing  in  joint-tenancy, — namely,  to  pre- 
vent dower  on  the  estate,  and  other  charges.'  Then  consider  how 
it  stood  in  respect  to  the  creditor.  A  father  here  was  in  posses- 
sion of  the  whole  estate,  and  must  necessarily  appear  to  be  the 
visible  owner  of  it,  and  the  creditor  would  have  had  a  right,  by 
virtue  of  an  elegit,  to  have  laid  hold  of  a  moiety ;  so  that  it  dif- 
fered extremely  from  all  the  other  cases.  Now,  it  was  very 
proper  that  the  Court  of  Chancery  should  let  itself  loose,  as  far 
as  possible,  in  order  to  relieve  a  creditor,  and  ought  to  be  gov- 
erned by  particular  circumstances  of  cases ;  and  what  could  be 
more  favorable  to  the  plaintiff  than  that  every  foot  of  the  estate 
was  covered  by  these  purchases  ?    and  unless  the  Court  let  him 


Title  XII.     Trust,     Ch.  L  5.  72—76.  383 

in  upon  these  estates,  the  plaintiff  had  no  possibility  of  being 
paid.  Decreed,  that  a  moiety  of  these  purchases  was  liable  to 
the  debt,  (a) 

73.  A  purchase  by  a  grandfather  in  the  name  of  his  grand- 
child, provided  the  father  be  dead,  in  which  case  the  grand- 
children are  in  the  immediate  care  of  the  grandfather,  will  be 
deemed  an  advancement  for  the  grandchild,  not  a  trust  for  the 
grandfather.  (&) 

74.  Where  a  person  purchased  a  copyhold  estate  in  the  names 
and  for  the  lives  of  his  three  natural  children,  who  were  admitted, 
and  described  as  his  daughters  in  the  admission,  Mr.  Fearne  in- 
clined to  the  opinion  that  the  daughters  were  entitled  to  the 
estate  for  their  own  use  ;  because  every  man  is  under  a  natural 
obligation  to  provide  for  such  children,  (c) 

*75.  It  is  said  by  Lord  Nottingham,  that  where  a  son  *402 
is  married  in  the  life  of  his  father,  and  by  him  fully  ad- 
vanced and  emancipated,  there  a  purchase  by  the  father,  in  the 
name  of  his  son,  may  be  a  trust  for  the  father  as  much  as  if  it 
had  been  in  the  name  of  a  stranger ;  because,  in  that  case,  all 
presumptions  or  obligations  of  advancements  cease.  But  where 
the  son  is  not  advanced,  or  but  advanced  or  emancipated  in  part, 
there  is  no  room  for  any  construction  of  a  trust  by  implication  ; 
and  without  clear  proofs  to  the  contrary,  it  ought  to  be  taken  as 
advancement  of  the  son.  (d) 

76.  It  is  also  said  by  Lord  Chief  Baron  Gilbert,  that  if  a  father 
purchases  in  the  name  of  his  son,  who  is  of  full  age,  which,  by 
the  English  law,  is  an  emancipation  out  of  the  power  of  the 
father ;  there,  if  the  father  takes  the  profits,  or  lets  leases,  or 
acts,  in  any  other  manner,  as  the  owner  of  the  estate,  the  son 
will  be  considered  as  a  trustee  for  the  father ;  because  there  is 
the  same  resulting  trust,  as  if  the  son  were  a  stranger,  since  it 
'was  purchased  with  the  father's  money.  But  if  the  father  had 
let  the  son  continue  in  possession  from  the  time  of  the  purchase, 
without  acting  as  owner,  it  would  be  an  advancement.  For  the 
legal  interest  being  in  the  son,  and  the  father  permitting  him  to 
act  as  owner  of  the  estate,  from  the  time  of  the  purchase,  did  as 

(a)  Stileman  v.  Ashdown,  2  Atk.  477.     (11  Johns.  96.) 

(b)  Ebrand  v.  Dancer,  2  Cha.  Ca.  26.    Lloyd  v.  Read,  1  P.  Wins.  608. 

(c)  Fearne's  Op.  327. 

{d)  Finch,  R.  341.    Elliot  v.  Elliot,  2  Cha.  Ca.  231.    Pole  v.  Pole,  1  Ves.  76. 


384  Title  XII.     Trust.     Ch.  I.  s.  76—81. 

much  declare  the  trust  for  the  advancement  of  the  son,  as  if  it 
had  been  declared  in  express  words  in  the  deed,  (a) 

77.  A  wife  cannot  be  a  trustee  for  her  husband;  therefore  if 
a  husband  purchases  lands  in  the  name  of  his  wife,  it  shall  be  pre- 
sumed, in  the  first  instance,  to  be  an  advancement  and  provision 
for  the  wife.1 

78.  A  married  man  purchased  a  walk  in  a  chase,  and  took  the 
patent  to  himself  and  his  wife,  and  J.  S.  for  their  lives,  and  the 
life  of  the  longest  liver  of  them.  Lord  Chancellor  Jefferies  held, 
that  this  should  be  presumed  an  advancement  and  provision  for 
the  wife ;  for  she  could  not  be  a  trustee  for  her  husband.  De- 
creed to  the  wife  for  life  ;  and  if  J.  S.  should  survive  her,  then  to 
be  a  trust  for  the  executors  of  the  husband,  (b) 

79.  A  husband  purchased  a  copyhold,  to  himself,  his  wife,  and 
daughter,  and  their  heirs.  It  was  held  to  be  an  advancement, 
and  not  a  trust ;  and  that  a  mortgage  by  the  husband  should  not 
bind  the  lands  after  his  decease,  in  the  lifetime  of  the  wife  and 

daughter,  (c) 
403  *  *  80.  There  can  be  no  resulting  or  implied  trust  be- 
tween a  lessor  and  his  lessee,  because  every  lessee  is  a 
purchaser  by  his  contract  and  his  covenants;  which  excludes  all 
possibility  of  implying  a  trust  for  the  lessor.  Therefore,  if  in 
that  case  there  be  any  trust  at  all,  it  must  be  declared  in  writing  ; 
but  there  may  be  a  resulting  or  implied  trust  between  the  as- 
signor and  assignee  of  a  leasehold  estate,  (d) 

81.  [Notwithstanding  the  dictum  of  Lord  Hardwicke  in  the 
case  of  Bagshaw  v.  Spencer,  that  all  trusts  were  in  notion  of  law 
executory,  (and  which  has  been  controverted  by  Fearne  with 
his  usual  ability,)  the  distinction  is  now  well  established  between 
trusts  executed  and  trusts  executory,  in  marriage  articles  and 
wills,  (e) 

(«)  Gilb.  Lex  Prcetoria,  271.  (b)  Kingdom  v.  Bridges,  2  Vera.  67. 

(c)  Back  v.  Andrews,  Prec.  in  Cha.  1.    2  Vern.  120. 

Id)  Pilkington  v.  Bayley,  7  Bro.  Pari.  Ca.  383.     Hutcliins  v.  Lee,  1  Atk.  447. 
(e)  2  Atk.  246,  583.     1  Coll.  Jurid.  413.     Fearne,  Eem.  141,  Ed.  8. 

I1  The  law  is  clear  that  there  is  no  resulting  trust  in  favor  of  the  husband,  from  the 
fact  that  the  lands  conveyed  to  the  wife  were  paid  for  with  the  money  of  the  husband. 
The  legal  estate  is  clearly  in  her,  and  the  presumption  of  law  is  that  it  is  for  her  own 
benefit.  A  trust,  therefore,  if  there  be  any,  for  the  husband,  must  be  shown  and  estab- 
lished by  other  evidence  than  that  showing  merely  that  the  purchase-money  was  paid 
by  the  husband.    Whitten  v.  Whitten,  3  Cush.  191.1 


Title  XII.     Trust.     Ch.  I.  s.  82—87.  385 

82.  Where  the  devise  or  trust  is  directly  and  wholly  declared 
by  the  testator  or  settlor,  so  as  to  attach  on  the  lands  immediately, 
under  the  deed  or  will  itself,  it  is  a  trust  executed  and  complete ; 
and  must  be  construed  strictly  according  to  its  legal  import,  and 
in  analogy  to  corresponding  limitations  of  legal  estates :  but 
where  the  devise,  trust,  or  agreement  is  directory  or  incomplete, 
describing  the  intended  limitation  of  some  future  conveyance  or 
settlement  directed  to  be  made  for  effectuating  it,  there  the 
trust  is  executory  ;  and  the  Court  of  Chancery  will  not  construe 
the  devise  or  articles  strictly,  but  will  endeavor  to  discover 
the  intention,  and  execute  the  trust,  according  to  that  inten- 
tion.] (a) 

83.  When  trusts  were  first  introduced,  it  was  held  that  none 
but  those  who  were  capable  of  being  seised  to  a  use  could  be 
trustees.  This  has  been  altered;  and  it  is  now  settled,  that  the 
king  may  be  a  trustee;  but  the  remedy  against  him  is  in  the 
Court  of  Exchequer,  (b) 

84.  A  corporation  may  also  be  a  trustee,  not  only  for  its  own 
members,  but  also  for  third  persons.  And  where  a  corporation 
is  a  trustee,  the  Court  of  Chancery  has  the  same  jurisdiction  over 
it  as  over  a  private  person,  (c) 

85.  When  once  a  trust  is  sufficiently  created,  it  will  fasten 
itself  on  the  estate.  Therefore  if  a  conveyance  or  devise,  by 
which  a  trust  is  created,  becomes  void  by  the  incapacity  or 
death  of  the  grantee  or  devisee,  still  the  Court  of  Chancery  will 
decree  the  trust  to  be  carried  into  execution.  The  relief  is 
administered  by  considering  the  land,  in  whatever  person 

*  vested,  as  bound  by  the  trust;  and  compelling  the  heir,     *404 
or  other  person  having  legal  estate,  to  perform  it.  (d) 

86.  A  person  devised  lands  to  his  daughter,  a  married  woman, 
for  her  separate  use.  It  was  held  that  the  husband  should  be  a 
trustee  for  his  wife.  For  as  the  testator  had  a  power  to  devise 
the  premises  to  trustees  for  the  separate  use  of  his  wife,  the 
Court  of  Chancery,  in  compliance  with  his  declared  intention, 
would  supply  the  want  of  them,  (e) 

87.  An  estate  was  devised  to  the  Clock-makers'  Company, 
upon  certain  trusts.     Decreed,  that  though  the  devise  was  void, 

(a)  Tit.  32.  C.  20.  Tit.  38.  c.  14.  1  Jac.  &  Walk.  570.        (b)  1  Ves.  453.    3  Bl.  Comra.  438. 

(c)  Mayor  of  Coventry  v.  Attorney  General,  7  Bro.  Pari.  Ca.  285.     2  Ves.  Jun.  40. 

(d)  1  Ves.  468.  (e)  Bennet  v.  Davis,  2  P.  Wms.  316. 

vol   i  33 


386  Title  XII.     Trust.    Ch.  I.  s.  87—88. 

the  Clock-makers'  Company  not  being  capable  of  taking,  yet  that 
the  trust  was  sufficiently  created  to  fasten  itself  upon  any  estate 
the  law  might  raise ;  therefore  that  the  heir  at  law  was  a  trustee 
for  the  uses  of  the  will,  (a) 

88.  [The  rule  that  the  trust  attaches  upon  the  land  so  as  to 
convert  all  persons  acquiring  the  legal  estate  into  trustees,  has  an 
exception  in  the  case  of  a  conveyance  by  the  trustee,  to  a  pur- 
chaser for  a  valuable  consideration,  without  notice  of  the  trust : 
the  remedy  of  the  cestui  que  trust  is  against  the  trustee.]  (b) 

{a)  Sonley  v.  Clock-makers'  Company,  1  Bro.  C.  C.  81.     Tit.  38.  c.  2. 

(6)  Snag's  case,  cited  in  Freem.  Ch.  Rep.  2d.  ed.  43.  c.  47.   Qu.  Sherley  v.  Fagg,  1  Ch.  Ca. 

68.     And  see  1  P.  Wms.  278,  279. 


387 


CHAP.  II. 


RULES    BY    WHICH   TRUST   ESTATES    OF   FREEHOLD    ARE    GOVERNED. 


Sect.     1.  A  Trust  is  equivalent  to   the 
Legal  Ownership. 
6.   Trusts  are  Alienable. 
9.  Devisable  and  Descendible. 

10.  Maybe  Entailed. 

11.  And  also  limited  for  Life. 

1 2.  Subject  to  Curtesy. 

16.   When  subject  to  Dower. 
22.  Not  to  Free  Bench. 
25.  Forfeitable  for  Treason. 


Sect.  27.  But  not  for  Felony. 

29.  Not  subject  to  Escheat. 

30.  Liable  to  Crown  Debts. 

31.  And  to  all  other  Debts. 
34.  Merge  in  the  Legal  Estate. 
36.   Where  a  Legal  Estate  is  a 

Bar  in  Ejectment. 
39.   Where  a  Reconveyance  tvill 
be  presumed. 


Section  1.  "We  have  seen  that  trust  estates  owe  their  origin  to 
the  strict  construction  given  by  the  courts  of  law  to  the  Statute 
of  Uses ;  in  consequence  of  which,  the  Court  of  Chancery  inter- 
posed its  authority,  and  supported  this  kind  of  property.  In  the 
exercise  of  this  jurisdiction,  that  court  first  laid  it  down  that  a 
trust  being  in  fact  a  use  not  executed,  should  be  regulated  by 
the  rules  which  had  been  established  respecting  uses,  before 
they  were  changed  into  legal  estates  :  but  as  this  doctrine  was 
productive  of  all  the  inconveniences  which  were  meant  to  be 
remedied  by  the  Statute  of  Uses,  it  has  been  in  a  great  degree 
abandoned. 

2.  In  the  case  of  Burgess  v.  Wheate,  (a)  Lord  Mansfield  said, — 
"  In  my  apprehension,  trusts  were  not  on  a  true  foundation  till 
Lord  Nottingham  held  the  great  seal.  By  steadily  pursuing, 
from  plain  principles,  trusts  in  all  their  consequences,  and  by 
some  assistance  from  the  legislature,  a  noble,  rational,  and  uni- 
form system  of  law  has  been  since  raised.  Trusts  are  made 
to  answer  the  exigencies  of  families,  and  all  purposes,  without 
producing  one  inconvenience,  fraud,  or  private  mischief,  which 
the  statute  of  Henry  VIII.  meant  to  avoid.     The  forum  where 

(a)  Infra,  tit.  30.  1  Black.  R.  155,  161.      1  Eden,  223. 


388  Title  XII.     Trust.     Ch.  II  s.  2—5. 

it  is  adjudged  is  the  only  difference  between  trusts  and 
406  *     legal  estates.     *  Trusts  here  are  considered,  as  between  the 

cestui  que  trust  and  trustee,  and  all  claiming  by,  through, 
or  under  them,  or  in  consequence  of  their  estates,  as  the  owner- 
ship, and  as  legal  estates  ;  except  when  it  can  be  pleaded  in  bar 
of  the  exercise  of  this  right  of  jurisdiction.  Wliatever  ivould  be 
the  rule  of  law,  if  it  was  a  legal  estate,  is  applied  in  equity  to  a 
trust  estate" 

3.  In  a  subsequent  part  of  the  same  speech,  Lord  Mansfield 
says,  the  above  doctrine  is  founded  on  the  maxim  that  equity 
follows  the  law ;  which  is  a  safe,  as  well  as  a  fixed  principle ; 
for  it  makes  the  substantial  rules  of  property  certain  and  uni- 
form, be  the  mode  of  following  it  what  it  will.  And  Lord  Thur- 
low  has  observed  that,  in  many  acts  of  parliament,  an  equitable 
estate  was  considered  the  same  as  if  it  were  a  legal  estate  ;  that 
the  words  seised  in  law  or  in  equity,  in  the  qualification  act, 
showed  that  the  word  seised  was  applicable  to  both  ;  and  that 
the  word  seisin  extended  to  being  seised  in  equity,  (a) 

4.  It  is  of  the  utmost  importance  that  trust  estates  of  the 
nature  of  freehold  should  be  considered  in  equity  as  perfectly 
analogous  to  legal  estates  of  the  same  kind,  and  subject  to  every 
incident  to  which  such  legal  estates  are  liable  ;  consequently, 
that  there  should  be  a  disseisin,  abatement,  or  intrusion,  allowed 
on  a  trust  estate,  as  well  as  on  a  legal  one.  And  this  doctrine 
was  admitted  by  Lord  Eldon  and  Lord  Redesdale  in  a  late  case, 
which  will  be  stated  hereafter,  (b)  x 

5.  A  trust  estate  still,  however,  retains  some  few  qualities  of  a 
use.  Thus  confidence  in  the  person  is  necessary  to  the  existence 
of  a  trust ;  so  that  even  at  this  day,  if  a  trustee  sells  the  land 
for  a  valuable  consideration  to  a  person  who  has  no  notice  of 
the  trust,  the  purchaser  will  not  be  compelled  in  chancery  to 
execute  it.1  As  for  privity  of  estate,  it  was  formerly  held  to  be 
as  necessary  as  confidence  in  the  person.     But  this  seems  to  be 

(a)  Watts  v.  Ball,  1  P.  Wins.  108,  infra,  s.  13.    2  Bro.  C.  C.  271. 
(6)  Cholmondeley  v.  Clinton,  tit.  31.  c.  2. 


i  But  if  the  purchaser  had  notice  of  any  paramount  title,  Chanceiy  will  hold  him 
trustee  for  the  benefit  of  all  persons  whose  rights  he  has  thus  sought  to  defeat.  As 
to  what  shall  constitute  notice,  in  cases  of  subsequent  purchase,  see  post,  tit.  32, 
ch.  29. 


Title  XII.     Trust.     Ch.  II.  s.  5—9.  389 

now  altered  ■  for  Lord  Mansfield  has  said,  "  That  part  of  the  old 
law  which  did  not  allow  any  relief  to  be  given  for  or  against  any 
estates  in  the  post,  does  not  now  bind  by  its  authority  in  the 
case  of  trusts,  (a)1 

6.  Any  disposition  of  a  trust  by  the  cestui  que  trust  was  for- 
merly binding  on  the  trustees  in  a  court  of  equity.  But  it  was 
enacted  by  the  Statute  of  Frauds,  s.  9, — "  That  all  grants  and 
assignments  of  any  trust  or  confidence  shall  be  in  writing, 
signed  *  by  the  party  granting  or  assigning  the  same  ;  or  *  407 
else  shall  be  utterly  void  and  of  none  effect." 

7.  Although  by  the  Stat.  1  Rich.  III.  c.  1,  the  conveyance  of 
a  person,  having  only  a  use,  was  made  good  against  the  feoffees 
to  use ;  yet,  it  does  not  appear  to  have  been  ever  held,  since  the 
Statute  of  Uses,  that  a  cestui  que  trust  could  convey  any  thing 
more  than  a  trust  estate.  And  in  all  modern  cases,  where  there 
has  been  a  conveyance  from  a  cestui  que  trust,  the  legal  estate 
has  been  considered  as  still  remaining  in  the  trustee,  (b) 

8.  It  was  laid  down  by  Lord  Nottingham  as  a  general  rule,— 
"  That  any  legal  conveyance  or  assurance  by  a  cestui  que  trust 
shall  have*  the  same  effect  and  operation  upon  a  trust,  as  it  should 
have  had  upon  the  estate  in  law,  in  case  the  trustees  had  exe- 
cuted their  trust,  (c) 

9.  Trust  estates  are  also  devisable,  as  will  be  shown  hereafter.2 

(a)  Tit.  11.  c.  2.     1  Black.  R.  155. 

(b)  Tit  11.  c.  2.     1  Sanders  on  Uses,  35.     8  Term  R.  494.  (c)  2  Cha.  Ca.  78. 


1  See  ante,  tit.  2,  ch.  2,  $  12,  13. 

2  As  to  the  power  of  trustees  to  devise  trust  property,  the  decisions  are  not  uniform. 
In  Cooke  v.  Crawford,  13  Sim.  91,  the  testator  devised  his  real  estates  to  A,  B,  and  C, 
in  trust*  that  they,  or  the  survivors  or  survivor,  or  the  heirs  of  the  survivor  should,  at 
their  discretion,  sell  the  same  ;  and  he  empowered  them  and  their  heirs  to  make  con- 
tracts with  purchasers  and  to  give  deeds;  and  declared  that  the  receipts  of  them  or  the 
survivors  or  survivor  of  them,  or  the  heirs,  executors,  or  administrators  of  such  sur- 
vivor, should  be  a  good  discharge  to  such  purchaser ;  and  directed  that  they,  their 
heirs,  executors,  administrators,  and  assigns,  should  hold  the  proceeds  of  sale  upon 
certain  trusts.  A  and  B  renounced  the  trust ;  and  C  alone  acted  ;  aud  devised  the 
estates  to  the  plaintiffs  upon  the  same  trusts.  After  his  death,  the  plaintiffs  agreed  to 
sell  the  estates  to  the  defendant ;  and  the  defendant  refusing  to  complete  the  purchase, 
on  the  ground  that  the  plaintiffs,  being  only  devisees  of  the  trustee,  could  not  make  a 
good  title  nor  give  a  valid  discharge  for  the  purchase-money,  without  the  concurrence 
of  the  cestui  que  trust,  a  bill  was  filed  to  compel  them  to  perform  the  contract.  But 
Vice-Chancellor  Shadwell  said  that,  upon  the  language  of  the  will,  it  was  plain  that  C 
was  not  authorized  to  devise  the  estate.    And  he  protested  against  the  proposition, 

33* 


390  Title  XII.     Trust.     Ch.  II.  s.  9. 

And  where  they  are  not  devised,  they  will  descend  to  the  heir  of 
the  person  who  was  last  entitled  to  them,  in  the  same  manner  as 
legal  estate  (a) 

(a)  Tit.  38.  c.  3.     Tit.  29.  c.  3. 

that  it  was  a  beneficial  thing  for  a  trustee  to  devise  the  trust  estate ;  observing  that,  in 
his  opinion,  it  was  not  beneficial  to  the  estate  to  allow  the  trustee  to  dispose  of  it  to 
whomsoever  he  might  think  proper  ;  nor  was  it  lawful  for  him  to  make  any  disposition 
of  it.  He  ought  to  permit  it  to  descend  ;  for,  in  so  doing,  he  acts  in  accordance  with 
the  devise  to  himself.  And  he  saw  no  substantial  distinction  between  a  conveyance, 
inter  vivos,  and  a  devise,  which  was  a  post  mortem  conveyance.  He,  therefore,  allowed 
the  demurrer  to  the  bill.  See  also  Townsend  v.  Wilson,  IE.  &  Aid.  608  ;  Bradford  v. 
Belfield,  2  Sim.  264. 

But  in  the  subsequent  case  of  Titley  v.  Wolsteuholme,  7  Beav.  425,  the  Court  seemed 
to  view  the  matter  differently.  In  that  case,  R.  Titley  devised  certain  estates  to  his 
wife  and  his  son  and  R.  Tebbutt,  their  heirs,  executors,  administrators,  and  assigns,  upon 
trust,  to  be  performed  by  "  the  said  trustees  and  the  survivors  and  survivor  of  them, 
his  or  her  heirs  and  assigns ;  " — directing  them  to  sell  the  residuary  real  estate,  and  give 
receipts  for  the  purchase-money ;  directing  "  the  said  trustees  and  executors  and  the 
survivors  and  survivor  of  them"  to  get  in  the  personal  estate ;  and  providing  how  "  the 
said  trustees  and  executors  and  survivors,  his  or  her  executors  and  administrators,'"  should 
apply  the  proceeds  of  the  estate  directed  to  be  sold,  &c. ;  and  "  if  it  should  appear  to 
said  trustees,  or  the  survivors  or  survivor  of  them,  his  or  her  heirs  or  assigns,  that  it 
would  be  advantageous  to  sell  "  certain  estates,  it  should  be  lawful  "for  said  trustees  or 
the  survivors  or  survivor  of  them  "  to  do  so.  He  also  gave  to  the  "  trustees  for  the  time 
being"  a  power  of  leasing;  adding  an  indemnity  clause  in  favor  of  his  "trustees  and 
executors  ;  "  and  appointing  his  son  and  R.  Tebbutt  and  another  person  his  executors. 
The  will  contained  no  power  to  appoint  new  trustees.  By  the  deaths  of  all  the  others, 
R.  Tebbutt  became  sole  surviving  executor  and  trustee  ;  and  then  devised  all  the  trust 
property  to  the  defendants,  their  heirs  and  assigns,  upon  the  trusts  mentioned  in  the  will 
of  R.  Titley.  The  bill,  in  this  case,  was  filed  by  the  cestuis  que  trust  under  the  will  of  R. 
Titley,  praying  a  declaration  that  this  last  devise  to  the  defendants  was  void,  and  that 
it  might  be  set  aside,  and  for  the  appointment  of  new  trustees,  and  a  conveyance  to 
them  of  the  trust  property. 

It  was  held  by  Lord  Langdale,  Master  of  the  Rolls,  upon  considering  the  whole  will, 
and  especially  upon  the  word  "assigns,"  that  the  testator  meant  to  give  to  the  survivor 
the  power  of  devising,  subject  to  the  trusts  ;  but  that  he  did  not  intend  to  give  the 
trustees  the  power  of  delegating  the  trust  during  their  own  lives.  And  he  proceeded 
to  state  the  general  doctrine  in  the  following  terms  : — "  When  a  trust  estate  is  limited 
to  several  trustees,  and  the  survivors  and  survivor  of  them,  and  the  heirs  of  the  survivor 
of  them,  and  no  power  of  appointing  new  trustees  is  given,  we  observe  a  personal  con- 
fidence given,  or  at  least  probably  given,  to  every  one  of  the  several  trustees.  As  any 
one  may  be  the  survivor,  the  whole  power  will  eventually  come  to  that  one,  and  he  is 
entrusted  with  it,  and  being  so,  he  is  not,  without  a  special  power,  to  assign  it  to  any 
other;  he  cannot,  of  his  own  authority,  during  his  own  life,  relieve  himself  from  the 
duties  and  responsibilities  which  he  has  undertaken. 

"  But  we  cannot  assume,  that  the  author  of  the  trust  placed  any  personal  confidence 
in  the  heir  of  the  survivor ;  it  cannot  be  known,  beforehand,  which  one  of  the  several 
trustees  may  be  the  survivor ;  and  as  to  the  contingent  survivor,  it  cannot  be  known, 


Title  XII.     Trust.     Ch.  II.  s.  10.  391 

10.  It  was  formerly  held  that  a  trust  estate,  being  merely  the 
creature  of  a  court  of  equity,  was  not  within  the  Statute  De 
Donis  ;  and,  therefore,  that  where  a  trust  estate  was  limited  to  a 
person  and  the  heirs  of  his  body,  he  might,  after  issue  had,  bar 
such  issue  by  a  feoffment,  bargain  and  sale,  &c.  But  this  has 
been  long  since  altered  ;  and  it  was  fully  settled  that  a  trust  estate 

beforehand,  whether  he  may  have  an  heir  or  not,  or  whether  the  heir  may  be  one,  or 
may  consist  of  many  persons,  trustworthy  or  not,  married  women,  infants,  or  bank- 
rupts, within  or  without  the  jurisdiction.  The  reasons,  therefore,  which  forbid  the  sur- 
viving trustee  from  making  an  assignment  inter  vivos,  in  such  a  case,  do  not  seem  to 
apply  to  an  assignment  by  devise  or  bequest;  which,  being  made  to  take  effect  only 
after  the  death  of  the  last  surviving  trustee,  and,  consequently,  after  the  expiration  of 
all  personal  confidence,  may,  perhaps  not  improperly,  be  considered  as  made  without 
any  violation  or  breach  of  trust.  It  is  to  take  effect,  only  at  a  time  when  there  must 
be  a  substitution  or  change  of  trustees, — there  must  be  a  devolution  or  transmission  of 
the  estate,  to  some  one  or  more  persons  not  immediately  or  directly  trusted  by  the 
author  of  the  trust, — the  estate  subject  to  the  trusts  must  pass  either  to  the  Iiceres  natus 
or  the  lucres  /actus  of  the  surviving  trustee,  and  if  the  heir  or  heirs  at  law,  whatever 
may  be  their  situation,  condition,  or  number,  must  be  the  substituted  trustee  or  trustees, 
the  greatest  inconvenience  may  arise,  and  there  are  no  means  of  obviating  them,  other 
than  by  application  to  this  Court.  With  great  respect  for  those  who  think  otherwise, 
and  quite  aware  that  some  inconveniences,  which  can  only  be  obviated  in  this  Court, 
may  arise,  from  devising  trust  estates  to  improper  persons,  for  improper  purposes,  I 
cannot,  at  present,  see  my  way  to  the  conclusion,  that  in  the  case  contemplated,  the 
surviving  trustee  commits  a  breach  of  trust  by  not  permitting  the  trust  estate  to  de- 
scend, or  by  devising  it  to  proper  persons,  on  the  trusts  to  which  it  was  subject  in  the 
hands  of  the  surviving  trustee. 

"But  the  case  so  considered  is  not  the  present  case.  We  have,  in  this  will,  expres- 
sions which  clearly  show  that  the  testator  intended  the  trusts  to  be  performed  bv  the 
'  assigns '  of  the  surviving  trustee  ;  and  in  construing  the  will,  we  must,  if  practicable, 
ascribe  a  rational  and  legal  effect  to  every  word  which  it  contains.  We  cannot,  con- 
sistently with  the  rules  of  this  Court,  consider  the  word  'assigns  :  as  meaning  the  per- 
sons who  may  be  made  such  by  the  spontaneous  act  of  the  surviving  trustee  to  take 
effect  during  his  life  ;  but  there  seems  nothing  to  prevent  our  considering  it  as  mean- 
ing the  persons  who  may  be  made  such  by  devise  and  bequest;  and  if  we  do  not  con- 
sider the  word  '  assigns'  as  meaning  such  persons,  it  would,  in  this  will,  have  no 
meaning  or  effect  whatever."  See  7  Bcav.  434 — 430  ;  Braybroke  v.  Inskip,  8  Ves.  417, 
Sumner's  ed.,  notes;  Jackson  v.  Delaucy,  13  Johns.  537  ;  4  Kent,  Comm.  538,  539, 
and  cases  there  cited.  Post,  tit.  38,  ch.  10,  §  140,  141.  The  case  of  Cooke  v.  Craw- 
ford is  reviewed,  and  its  doctrine  strongly  disapproved,  in  2  Jarm.  on  Wills,  714 — 718. 

In  New  York,  it  is  enacted  by  statute,  (Vol.  II.  p.  15,  §  68,"3d  ed.,)  that  upon  the  death 
of  the  surviving  trustee  of  an  express  trust,  the  trust  shall  not  descend  to  his  heirs,  nor 
pass  to  his  personal  representatives ;  but  the  trust,  if  then  unexecuted,  shall  vest  in  the 
Court  of  Chancery,  with  all  the  powers  and  duties  of  the  original  trustee,  and  shall 
be  executed  by  some  person  appointed  for  that  purpose,  under  the  direction  of  the 
Court.  [By  the  Maryland  Statute,  ("Act  1831,  ch.  311,  §  11,)  mere  naked  trusts,  when 
the  trustee  has  no  beneficial  interest  or  estate  whatsoever  in  the  lands,  descend  to  the 
heir  at  common  law.     Duffy  v.  Calvert,  6  Gill,  487.] 


392  Title  XII.     Trust.     Ch.  II.  s.  10—15. 

might  be  entailed  in  the  same  manner  as  a  legal  one  ;  and  that, 
[previously  to  the  Stat.  3  &  4  Will.  IV.  c.  74,]  such  entail  could 
only  be  barrejd  by  a  fine  or  common  recovery,  (a) 

11.  A  trust  estate  may  also  be  limited  to  a  person  for  life. 
And  in  such  case,  no  fine  or  other  assurance,  by  the  cestui  que 
trust  for  life,  will  operate  as  a  forfeiture  of  his  estate  ;  because 
the  forfeiture  of  legal  estates  being  derived  from  feudal  principles, 
and  never  extended  to  uses,  the  Court  of  Chancery  has,  in  this 
instance,  adhered  to  the  ancient  rules. 

12.  Although  a  man  could  not  be  tenant,  by  the  curtesy  of  a 
use,  before  the  Stat.  27  Hen.  VIIL,  because  the  wife  could  have 
no  seisin  of  a  use ;  yet  it  has  been  determined  by  the  Court  of 
Chancery  that  a  husband  may  acquire  an  estate  by  the  curtesy  in 
a  trust. 

13.  A  person  having  two  daughters,  devised  his  lands 
408  *  to  trustees  *  and  their  heirs,  in  trust,  to  pay  his  debts,  and 
to  convey  the  surplus  to  his  daughters  equally.  The 
eldest  daughter  brought  her  bill  for  a  partition;  and  the  only 
question  was,  whether  the  husband  of  the  youngest  daughter 
should  have  an  estate  for  life  conveyed  to  him  as  tenant  by  the 
curtesy.  The  husband,  in  his  answer,  had  sworn  that  he  married 
the  younger  daughter  upon  a  presumption  that  she  was  seised  in 
fee  of  a  legal  estate  in  the  moiety  ;  that,  at  the  time  of  the  mar- 
riage, she  was  in  the  receipt  of  the  profits  of  such  moiety  ;  and, 
it  was  admitted,  that  this  trust  was  not  discovered  till  after  the 
death  of  the  younger  daughter.  Lord  Cowper  decreed  that  trust 
estates  ought  to  be  governed  by  the  same  rules,  and  were  within 
the  same  reason,  as  legal  estates ;  that  as  the  husband  should 
have  been  tenant  by  the  curtesy,  had  it  been  a  legal  estate,  so 
should  he  be  of  a  trust  estate  ;  and  if  there  were  not  the  same 
rules  of  property  in  all  courts,  all  things  would  be  as  it  were  at 
sea,  and  under  the  greatest  uncertainty.  (6) 

14.  [The  husband  will  be  entitled  to  curtesy  out  of  the  trust  or 
equitable  estate  of  inheritance  of  the  wife,  notwithstanding  the 
trust  be  declared  during  the  life  of  the  wife  for  her  separate  use. 

15.  This  point  was  for  a  time  unsettled.  In  Roberts  v.  Dix- 
well,  the  trust  was  to  convey  the  testator's  real  estate  for  the  sole 

(«)  North  v.  Way,  1  Vern.  13.  Bowater  ».  Ellis,  2  Vern.  344.  Kirkham  v.  Smith,  Amb. 
518.  (b)  Watts  r.  Ball,  1  P.  Wms.  108. 


Title  XII.     Trust.    Ch.  II.  s.  15.  393 

and  separate  use  of  his  daughter  Priscilla,  and  after  her  death 
upon  trust  for  the  heirs  of  her  body  forever.  Lord  Hardwicke 
held  this  not  to  be  an  estate  tail  in  Priscilla,  because  the  trust 
was  executory ;  but  that  it  would  have  been  otherwise  had  the 
trust  been  executed ;  the  trust  for  the  separate  use  of  Priscilla  for 
life,  not  preventing  the  union  of  the  life-estate  with  the  subse- 
quent trust  to  the  heirs  of  her  body.  In  the  subsequent  case  of 
Hearle  v.  Greenbank,  Lord  Hardwicke  made  a  decision  in  oppo- 
sition to  the  general  doctrine  laid  down  by  him  in  the  preceding 
case.  There  Doctor  Worth  devised  real  estate  to  trustees,  upon 
trust,  for  the  separate  use  of  Mary,  the  wife  of  William  Wins- 
more,  and  upon  further  trust  to  permit  her  to  dispose  thereof  by 
deed  or  will,  notwithstanding  coverture.  Mary  Winsmore  was 
the  only  child  and  heir  of  the  testator.  Her  appointment,  by 
will,  was  invalid  by  reason  of  her  infancy;  and,  at  the  testator's 
death,  the  equitable  fee  in  reversion,  not  being  disposed 
of  by  the  will,  descended  upon  her.  *  The  question  was,  *  409 
whether  her  husband  was  entitled  to  curtesy ;  and  Lord 
Hardwicke  decided  in  the  negative,  observing,  there  was  no 
seisin  in  deed  of  the  inheritance  in  the  wife  during  the  coverture, 
and  so  the  husband  was  neither  at  law,  nor  in  equity,  tenant  by 
the  curtesy.  In  the  recent  case  of  Morgan  v.  Morgan,  closely 
resembling  Hearle  v.  Greenbank,  Sir  John  Leach,  V.  C,  decided 
that  the  husband  was  entitled  to  the  curtesy,  thereby  overruling 
the  latter  case.  In  Morgan  v.  Morgan,  the  trust  in  a  marriage 
settlement  was  for  the  sole  and  separate  use  of  the  wife  for  life, 
with  power  to  appoint  by  deed  or  will ;  and  for  want  of  appoint- 
ment, for  the  wife,  her  heirs,  and  assigns.  His  Honor  observed, 
in  the  conclusion  of  his  judgment,  that  the  husband  was  partially 
and  not  wholly  excluded  from  the  enjoyment  of  the  wife's  prop- 
erty ;  that  the  Court,  according  to  the  intention  of  the  settlement, 
would  restrain  his  interference  with  the  rents  during  the  wife's 
life,  but  as  there  was  no  further  exclusion  expressed  in  the  settle- 
ment, the  Court  would  not  restrain  him  from  the  enjoyment  of 
his  general  right  as  tenant  by  the  curtesy.]  (a)  ] 

(a)  Roberts  v.  Dixwell,  1  Atk.  606.  Feame,  Rem.  54 — 5.  Hearle  r.  Greenbank,  3  Atk. 
695,  715."  S.  C.  1  Ves.  sen.  698.  Morgan  v.  Morgan,  5  Mad.  408.  Bennct  v.  Davis,  2  P. 
Wms.  316. 

'  [  1  Norton  v.  Norton,  2  Sandf.  Sup.  Ct.  296.] 


394  Title  XII.     Trust.     Ch.  II.  s.  16—20. 

16.  It  might  have  been  expected  that  where  the  Court  deviated 
so  far  from  the  old  law  of  uses  as  to  allow  curtesy  of  an  equitable 
estate,  it  would  have  extended  the  same  indulgence  to  dower, 
being  a  right  strongly  favored  by  the  common  law ;  yet  it  had 
been  long  settled,  [previously  to  the  recent  Statute  3  &  4  Will. 
IV.  c.  105,]  that  a  widow  is  not  dowable  at  law  of  an  equitable 
estate,  whether  the  husband  himself  had  parted  with  the  legal 
estate,  or  a  trust  estate  had  descended  upon  or  been  limited  to 
him.1 

17.  The  first  time  this  point  appears  to  have  been  determined 
was  in  12  Cha.  II. ;  and  although  this  doctrine  has  been  followed 
by  subsequent  chancellors,  yet  they  have  uniformly  expressed  their 
regret  at  being  bound  by  such  a  precedent.  But  many  cases  of 
this  kind  have  arisen,  and  the  determinations  have  been  uniform 
against  the  claim  of  dower  out  of  a  trust  estate,  (a) 

18.  Thus,  a  husband,  before  marriage,  conveyed  his  estate  to 
trustees  and  their  heirs,  in  such  manner  as  to  put  the  legal  estate 
out  of  him.  It  was  determined,  that  though  the  trust  estate  was 
limited  to  him  and  his  heirs,  yet  his  widow  should  not  be  endowed 
of  it ;  that  the  Court  had  never  gone  so  far  as  to  allow  dower  in 

such  a  case,  (b) 
410  *  *  19.  A  purchased  an  estate  in  the  names  of  two  trus- 
tees, who  acknowledged  the  trust  after  his  death.  Upon 
a  claim  made  by  his  widow  to  dower,  it  was  decreed  that  she 
was  not  dowable.  The  decree  was  affirmed  in  the  House  of 
Lords,  (c) 

20.  Sir  J.  Jekyll  has  attempted  to  distinguish  between  the  case 
of  a  trust  created  by  the  husband  himself,  and  a  trust  created  by 
another  person.  In  the  first  case,  he  admits  it  to  be  a  settled 
point,  from  the  authority  of  the  preceding  cases,  that  the  wife 
cannot  have  dower ;  because,  it  must  be  presumed,  the  trust  was 
created  for  the  sole  purpose  of  barring  dower.  Accordingly,  it 
had  been  the  common  practice  for  purchasers  to  take  a  convey- 
ance of  the  legal  estate  in  a  trustee's  name,  to  prevent  dower. 

(a)  Colt  v.  Colt,  1  Cha.  R.  134.  (6)  Bottomley  v.  Fairfax,  Prec.  in  Cha.  33S. 

(c)  Ambrose  v.  Ambrose,  1  P.  Wms.  321.    Printed  cases,  in  Dom.  Proc.  1717. 

1  In  many  of  the  United  States,  the  widow  is  by  statute  made  dowable  of  equitable 
estates,  under  various  modifications.  See  ante,  tit.  6,  ch.  2,  §  25,  note.  See  also  4  Kent, 
Cornm.  p.  43 — 47. 


Title  XII.     Trust.     Ch.  II.  s.  20—23.  395 

But  in  the  second  case,  where  a  trust  estate  descended,  or  came 
to  the  husband  from  another  person,  it  was  different.  This  dis- 
tinction has,  however,  been  exploded  by  Lord  Hardwicke,  in  a 
case  which  will  be  stated  hereafter,  (a) 

21.  It  is  also  laid  down  by  Sir  Joseph  Jekyll,  that  where  a 
particular  time  is  appointed  for  conveying  the  legal  estate  to  the 
husband,  and  he  outlives  that  time,  without  obtaining  such  con- 
veyance, his  widow  shall,  notwithstanding,  be  entitled  to  dower 
in  equity ;  for  where  an  act  is  to  be  done  by  a  trustee,  that  is 
looked  on  as  done  which  ought  to  have  been  done.  But  this 
doctrine  is  not  supported  by  the  decree  in  the  case  referred  to, 
without  the  additional  proposition,  that  a  widow  was  dowable  of 
an  equity  of  redemption  in  fee.  It  was  a  mortgage  in  fee,  and 
not  paid  off  during  the  coverture.  If  the  trustee,  therefore,  had 
conveyed,  he  would  have  conveyed  an  equity  of  redem  ption  only 
subject  to  a  mortgage  in  fee ;  and  the  widow  would  not  have 
been  entitled  to  dower,  unless  she  was  dowable  out  of  such 
equity  of  redemption,  which  she  was  not.  This,  therefore, 
though  said,  will  not  support  the  decree  ;  and  the  proposition  is 
too  important,  and  contradicted  by  too  many  analogies,  to  be 
hazarded  upon  this  dictum  alone.  (b)j 

22.  It  is  said  by  Lord  Cowper,  that  the  widow  of  a  cestui  que 
trust  of  a  copyhold  ought  to  have  her  free  bench,  as  well  as  if  the 
husband  had  the  legal  estate  in  him.1  But  this  doctrine  has  been 
contradicted  in  the  following  case  :  (c) 

*  23.  A  bill  was  brought  by  a  widow  for  a  customary  *  411 
estate.  The  husband's  father  bought  the  lands,  which 
were  conveyed  to  him  and  D.,  and  the  heirs  of  the  father.  The 
father  devised  the  lands  to  the  husband  in  tail ;  and  D.  survived 
the  husband.  The  custom  was  laid  for  the  wife  to  have  the 
whole,  as  her  free  bench.  Lord  Hardwicke, — "  It  is  an  estab- 
lished doctrine  now,  that  a  wife  is  not  dowable  of  a  trust  estate. 
Indeed,  a  distinction  is  taken  by  Sir  J.  Jekyll,  in  Banks  v.  Sutton, 

(a)  2  P.  Wms.  708.     Goodwin  v.  Winsmore,  2  Atk.  525.    Post,  s.  23. 

(b)  Banks  v.  Sutton,  2  P.  Wms.  706.     Dixon  v.  Saville,  tit.  15.  c.  3. 

(c)  2  Vern.  585. 

[t  But  now,  by  the  Statute  3  &  4  Will.  4,  c.  105,  s.  2,  women  married  after  the  1st  of 
January,  1834,  are  dowable  out  of  equitable  estates.     Sup.  tit.  6,  ch.  1,  s.  25,  note.] 

1  In  the  United  States,  she  is  dowable  in  Equity.  See  ante,  tit.  6,  ch.  1,  §  6 — 10;  and 
ch.  2,  §  24,  note  (2),  and  $  25,  note  (1). 


396  Title  XII.     Trust.     Ch.  II.  s.  23—25. 

in  respect  to  a  trust,  where  it  descends  or  comes  to  a  husband 
from  another,  and  is  not  created  by  himself;  but  I  think  there  is 
no  ground  for  such  a  distinction ;  for  it  is  going  on  suppositions 
which  will  hold  on  both  sides  ;  and,  at  the  latter  end  of  the  re- 
port, Sir  J.  J.  seems  to  be  very  diffident  of  it,  and  rested  chiefly 
on  another  point  in  equity  ;  so  that  it  is  no  authority  in  this,  case. 
But  there  is  a  late  authority  in  direct  contradiction  to  the  dis- 
tinction above  taken  in  Banks  v.  Sutton ;  the  case  of  the  Attor- 
ney-General v.  Scott.  The  only  case  for  the  plaintiff  is  that  of 
Otway  v.  Hudson,  2  Vern.  583.  There  it  was  free  bench,  and  is 
so  called  here ;  but,  it  appears  plain  to  be  only  customary  dower. 
Free  bench  is  merely  a  widow's  estate  in  such  lands  as  the  hus- 
band dies  seised  of;1  not  that  he  is  seised  of  during  the  coverture, 
as  dower  is.  There  were  many  circumstances  in  the  case  of 
Otway  v.  Hudson ;  it  was  decreed  on  the  endeavor  of  the  hus- 
band to  get  the  legal  estate  surrendered,  and  the  refusal  of  the 
trustees;  and  grounded  on  his  will  ;  but  as  to  the  general  doctrine 
at  the  latter  end,  it  is  not  warranted  by  the  decree."  The  bill 
was  dismissed,  (a) 

24.  Where  a  man,  immediately  before  his  marriage,  privately 
and  secretly  conveys  his  estate  to  a  trustee  for  himself,  in  order 
to  defeat  Ms  wife  of  dower,  such  conveyance  will  be  deemed 
fraudident  and  void,  (b) 

25.  Before  the  Statute  of  Uses,  the  king  was  not  entitled  to  a 
use  upon  an  attainder  for  treason  of  the  cestui  que  use,  as  is  men- 
tioned in  the  preamble  to  that  statute ;  so  that  afterwards,  trusts 
were  by  an  analogy  drawn  from  uses,  also  protected  from  for- 
feiture, upon  an  attainder  of  the  cestui  que  trust  for  high  treason. 

This  produced  the  Statute  33  Hen.  VIII.  c.  20,  by  which  it  is 
enacted, — "  That  if  any  person  shall  be  attainted  or  convicted  of 

high  treason,  the  king  shall  have  as  much  benefit  and 
412  *     advantage    by    *  such  attainder  as  well  of  uses,  rights, 

entries,  and  conditions,  as  of  possessions,  reversions,  re- 
mainders, and  all  other  things,  as  if  it  had  been  done  and  de- 
clared by  authority  of  parliament,  (c) 

(a)  Goodwin  v.  Winsmore,  2  Atk.  525.     Atto.-Gen.  v.  Scott,  Forrest,   138.     Tit.  10.  c.  3. 
Forder  v.  Wade,  4  Bro.  C.  C.  521. 

(b)  Tit.  32.  c.  27.  (c)  Tit.  11.  c.  2.  S.  24.     Vide  supra,  tit.  1.  s.  67—69. 


1  Any  portion  of  the  lands  given  to  the  widow  for  her  dower,  by  special  custom, 
other  than  that  assigned  by  the  common  law,  is  termed  her  free  bench.  See  tit.  6,  ch. 
1,  §  8,  9,10. 


Title  XII.     Trust.     Ch.   II.  s.  20—29.  397 

20.  Lord  Hale  has  observed  that  at  the  time  when  this  statute 
was  made,  there  could  be  no  use  but  that  which  is  now  called 
a  trust;  and  although  it  was  determined  in  Abington's  case,  that 
a  trust  estate  of  freehold  was  not  forfeited  by  attainder  of  treason, 
yet  that  resolution  could  not  be  reconciled  with  the  Statute  33 
Hen.  VIIL,  as  the  uses  there  mentioned  could  be  nothing  but 
trusts ;  therefore  he  was  of  opinion,  that  upon  an  attainder  for 
high  treason  of  the  cestui  que  trust  of  an  inheritance,  the  equity 
or  trust  was  forfeited ;  though  possibly  the  land  itself  was  not 
forfeited,  (a) 

27.  "Whatever  may  be  the  case  in  an  attainder  for  high  trea- 
son, it  has  been  determined  that  an  attainder  for  felony  is  not 
within  the  Statute  33  Hen.  VIIL  Therefore,  in  such  a  case, 
neither  the  trust  nor  the  land  becomes  forfeited ;  for  the  king  has 
his  tenant  as  before,  namely,  the  trustee,  (b) 

28.  Freeman  Sands  being  attainted  of  felony,  for  the  murder 
of  his  brother,  and  having  a  trust  estate  in  lands  held  of  the 
king,  of  which  Sir  George  Sands  had  the  legal  estate ;  the  Attor- 
ney-General preferred  an  information  in  the  Exchequer  against 
Sir  G.  Sands,  to  have  a  conveyance  of  the  legal  estate  to  the 
king.  The  Court  resolved,  that  although  ^eeman  Sands  had 
the  trust  of  the  land  at  the  time  of  his  attainder,  yet  inasmuch 
as  Sir  G.  Sands  continued  seised  of  the  lands,  and  so  was  tenant 
to  the  king,  though  subject  to  the  trust,  yet  the  trust  was  not 
forfeited  to  the  crown ;  but  that  Sir  G.  Sands  should  hold  the 
lands  for  his  own  benefit,  discharged  from  the  trust,  (c) 

29.  It  was  decreed  by  Lord  Northington  in  a  modern  case,  that 
a  trust  estate  of  inheritance  does  not  escheat  to  the  crown  by  the 
death  of  cestui  que  trust,  without  heirs ; ]  but  that  the  trustee 
shall  hold  the  land  discharged  from  the  trust.  Lord  Mansfield 
held,  that  trust  estates  should  escheat  in  the  same  manner  as 
legal  ones,  and  Lord  Thurlow  appears  to  have  been  of  the  same 
opinion.  (d~) 

(a)  1  Hal.  P.  C.  248.  (b)  Vid.  Supra,  tit.  1.  s.  69. 

(c)  Attorney-General  v.  Sand?,  1  Hale,  P.  C.  249. 

(d)  Burgess  v.  Wheate,  tit.  30.  §  26.     King  v.  Holland,  Alleyn,  14.    Style,  41.  ace.     And  see 
Weaver  v.  Maule,  2  Rus.  &  M.  97. 


1  See,  accordingly,  2  Bl.  Coram.  337  ;   Att'y-Gen.  v.   Sands,  Ilardr.  488,  494,  per 
Hale,  Ld.  Ch.  B. ;  1  Hal.  P.  C,  249,  S.  C.    In  Maryland,  it  is  held  otherwise,  agrec- 

vol.  i.  34 


398  Title   XII.     Trust.    Ch.  II.    s.   30—31. 

30.  It  appears  somewhat  doubtful,  whether  trusts  were  origi- 
nally liable  to  crown  debts.  But  by  the  Statute  13  Eliz.  c.  4,  it 
is  enacted,  that  if  any  person,  who  is  an  accountant,  or  indebted 

to  the  crown,  shall  purchase  any  lands  in  the  name  of 
413*     *  other  persons,  to  his  own  use,  all  such  lands  shall  be 

taken  for  the  satisfaction  of  the  debts  due  by  such  persons 
to  the  crown,  (a) 

31.  It  was  formerly  held  by  the  Court  of  Chancery,  by  anal- 
ogy from  the  old  law  of  uses,  that  trust  estates  were  not  subject 
to  debts,  nor  assets  in  the  hands  of  the  debtor's  heirs.  To 
remedy  this,  it  was  enacted  by  the  Statute  of  Frauds,  s.  10 — 
"  That  it  shall  and  may  be  lawful  for  every  sheriff  or  other 
officer,  to  whom  any  writ  or  precept  shall  be  directed,  upon  any 
judgment,  statute,  or  recognizance,  to  do,  make,  and  deliver 
execution  unto  the  party  in  that  behalf  suing,  of  all  such  lands, 
tenements,  &c.  as  any  other  person  or  persons  shall  be  seised  or 
possessed  in  trust  for  him  against  whom  execution  is  so  sued, 
like  as  the  sheriff  or  other  officer  might  or  ought  to  have  done 
if  the  said  party,  against  whom  the  execution  shall  be  so  sued, 
had  been  seised  of  such  lands,  tenements,  &c.  of  such  estate  as 
they  be  seised  of  inttrust  for  him  at  the  time  of  the  said  execu- 
tion sued,  which  lands,  tenements,  &c.  by  force  and  virtue  of 
such  execution,  shall  accordingly  be  held  and  enjoyed  free  and 
discharged  from  all  incumbrances  of  such  person  or  persons  as 
shall  be  so  seised  or  possessed  in  trust  for  the  person  against 
whom  such  execution  shall  be  sued ;  and  if  any  cestui  que  trust 
shall  die  leaving  a  trust  in  fee  simple  to  descend  to  his  heir,  then 
and  in  every  such  case  such  trust  shall  be  deemed  and  taken, 
and  is  hereby  declared  to  be,  assets  by  descent ;  and  the  heir 
shall  be  liable  to  and  chargeable  with  the  obligation  of  his 
ancestors,  for  and  by  reason  of  such  assets,  as  fully  and  amply 
as  he  might  or  ought  to  have  been,  if  the  estate  in  law  had 
descended  to  him  in  possession,  in  like  manner  as  the  trust 
descended."  (b)  f  * 

(a)  Tit.  1.  (b)  Bennet  v.  Box,  1  Clia.  Ca.  12.  Stat.  29  Cha.  2.  c.  3.  (1  and  2  Vict.  c. 
110.)     Harris  v.  Pugh,  4  Bing.  335. 

ably  to  the  opinion  of  Lord  Mansfield  and  Lord  Thurlow.  Matthews  v.  Ward,  10  G. 
&  J.  443.     See  post,  ch.  4,  §  4. 

[  t  An  equity  of  redemption  is  not  a  trust  within  this  statute,  and  it  has  therefore 
been  held  to  be  equitable  assets.    Plunket  v.  Penson,  2  Atk.  290.] 

1  This  statute  did  not  extend  to  the  Provinces,  and  in  some  of  the  United  States 


Title  XII.     Trust.     Ch.  II.  s.  32—35.  399 

32.  It  has  been  held,  that  if  a  trustee  has  conveyed  away  the 
lands,  by  the  direction  of  the  cestui  que  trust,  before  execution 
is  sued  out,  they  cannot  afterwards  be  taken  by  the  creditor,  (a) 

33.  Where  a  trust  estate  descends  on  the  heir  at  law,  though 
it  may  be  necessary  to  resort  to  equity  to  reduce  it  into  pos- 
session, yet  it  will  be  considered  as  legal,  and  not  equitable 
assets ;  a  trust  estate  being  made  assets  by  the  statute,  (b) 

34.  Trust  estates  are  in  all  cases  subject  to  merge  in  the  legal 
estate,  whenever  both  estates  come  to  the  same  person, 
because  *a  man  cannot  be  trustee  for  himself.     And  in  a     *414 
modern  case  Lord  Thurlow  said  it  was  universally  true, 

that  where  the  estates  unite,  the  equitable  must  merge  in  the 
legal,  (c) 

35.  In  a  subsequent  case  Lord  Alvanley  said, — "  Another 
position  was  maintained  in  a  latitude  that  would  create  infinite 
confusion ;  that  where  there  is  in  the  same  person  a  legal  and 
equitable  interest,  the  former  absorbs  the  latter.  I  admit  that 
where  he  has  the  same  interest  in  both,  he  ceases  to  have  the 
equitable  estate,  and  has  the  legal  estate,  upon  which  this  Court 
will  not  act,  but  leaves  it  to  the  rules  of  law.  But  it  must  be 
understood  always  with  this  restriction,  that  it  holds  only  where 
the  legal  and  equitable  estates  are  coextensive,  and  commensu- 
rate ;  but  I  do  not  by  any  means  admit,  that  where  he  has  the 

(a)  Hunt  v.  Coles,  tit.  14.  (b)  1  Atk.  293. 

(c)  Wade  v.  Paget,  1  Bro.  C.  C.  363.     Vide  Goodright  v.  Wells,  tit.  29.    See  tit.  39. 


it  was  never  adopted.  Russell  v.  Lewis,  2  Pick.  50S,  511;  Merrill  v.  Brown,  12 
Pick.  216;  Walker's  Introd.  p.  312,  597,  598;  Ashhurst  v.  Given,  5  Watts  &  Serg. 
523.  But  the  land  may  be  reached  by  process  in  Chancery ;  and  in  many  of  the  States 
it  is  liable  to  process  at  law  against  the  cestui  que  trust.  Hotchkiss'  LL.  Georgia, 
p.  409,  §  36,  ree'nacting  Stat.  29  Car.  2,  c.  3,  §  10;  Pritchard  v.  Brown,  4  N.  Hamp. 
397,  404.  Kentucky,  Rev.  Stat.  1834,  Vol.  I.  p.  443,  §  13.  Virginia,  Stat.  1782,  ch.  62 ; 
Tate's  Dig.  175,  (2d  ed.)  This  statute  is  taken  from  that  of  29  Car.  2,  ch.  3,  $  10. 
Clayton  v.  Anthony,  6  Rand.  285 ;  Coutts  v.  Walker,  2  Leigh.  280.  Maryland,  Stat. 
1795,  ch.  56,  and  1810,  ch.  160  ;  Hopkins  v.  Stump,  2  H.  &  J.  301 ;  Ford  v.  Philpot,  5 
H.  &  J.  316  ;  Miller  v.  Allison,  8  G.  &  J.  35 ;  McMechen  v.  Marman,  Ibid.  57  ;  Ontario 
v.  Root,  3  Paige,  478.  In  Indiana,  all  equitable  interests  in  lands  may  be  taken  in 
execution,  except  those  of  purchasers  by  contract,  not  yet  performed  by  conveyance  ; 
which  last  are  liable  only  in  Equity.  Indiana,  Rev.  St.  1843,  ch.  29,  art.  1,  §  1,  14  ; 
Modisett  v.  Johnson,  2  Blackf.  431.  See  also  Tennessee,  Rev.  St.  1836,  p.  223,280, 
292;  Stat.  1832,  ch.  11,  §  3;  1  Yerg.  1  ;  2  Yerg.  400.  North  Carolina,  Rev.  Stat. 
1836,  ch.  45,  §  4,  Vol.  I.  p.  266,  as  expounded  in  3  Hawks,  R.  149;  Foote  v.  Colvin,  3 
Johns.  216  ;  Jackson  v.  Walker,  4  Wend.  462 ;  4  Kent,  Comm.  308,  309,  note  (c)  5th  cd. 


400  Title  XII.     Trust.     Ch.  II.  5.  35—38. 

whole  legal  estate  and  a  partial  equitable  estate,  the  latter  sinks 
into  the  former  ;  for  it  would  be  a  disadvantage  to  him.  (a) l 

36.  It  is  a  rule  of  law  that  in  an  ejectment,  the  plaintiff  must 
recover  upon  the  strength  of  his  own  title,  and  cannot  found  his 
claim  on  the  weakness  of  that  of  the  defendant ;  for  possession 
has  given  the  defendant  a  right  against  every  man  who  cannot 
show  a  good  title.  The  party  who  would  change  the  possession 
must  first  establish  a  legal  title  in  himself ;  therefore,  where  it 
can  be  shown  by  the  defendant  that  the  legal  title  is  not  in  the 
plaintiff,  he  cannot  recover  in  the  action,  (b)  2 

37.  It  was  formerly  held  that  an  outstanding  legal  estate  should 
not  be  set  up  as  a  bar  in  ejectment  to  the  cestui  que  trust,  where 
he  was  entitled  to  the  benefit  of  the  whole  legal  estate.  But 
Lord  Mansfield  has  said,  the  rule  only  was,  that  the  legal  es- 
tate should  not  be  set  up,  to  defeat  the  cestui  que  trust,  in  a 
clear  ease ;  for  where  the  trust  was  perfectly  manifest,  the  rule 
stood  upon  strong  and  beneficial  principles ;  because  in  eject- 
ment the  question  was,  who  was  entitled  to  the  possession. 
But  if  a  trust  was  doubtful,  a  court  of  law  would  not  decide 
upon  it  in  an  ejectment ;  it  must  be  put  into  another  way  of  in- 
quiry, (c) 

38.  This  doctrine  has  been  denied  by  Lord  Kent/on,  who  has 
said,  that  "  if  it  appear  in  a  special  verdict,  or  a  special  case, 
that  the  legal  estate  is  outstanding  in  another  person,  the  party 
not  clothed  with  that  legal  estate  cannot  recover  in  a  court  of 
law.     And  in  this  respect  I  cannot  distinguish  between  the  case 

(«)  Brydges  v.  Brydges,  3  Yes.  120,  127. 

(b)  Nicholson  v.  Halsey,  1  Joluis.  Ch.  417 ;  Gardner  v.  Astor,  3  Johns.  Ch.  53. 

(c)  3  Burr.  1901;  Cowp.  40;  Doug.  721. 


1  See,  as  to  Merger,  post,  tit.  39. 

2  If  the  plaintiff  can  show  a  legal  title  in  himself,  better  than  that  of  the  defendant, 
he  may  recover,  although  his  title  be  not  indefeasible.  If  the  defendant  can  disprove 
the  existence  of  any  legal  title  at  all  in  the  plaintiff,  he  will  prevail,  on  the  ground  of 
his  own  actual  possession.  But  it  seems  that  he  cannot  defeat  the  plaintiff's  action  by 
showing  that  a  third  person  has  a  legal  title  paramount  to  that  of  the  plaintiff,  unless 
he  can  deduce  that  title  to  himself,  or  claims  under  it.  But  in  a  writ  of  entry,  or  other 
real  action,  founded  on  the  seisin  of  the  plaintiff,  the  tenant  may  disprove  the  allegation 
of  the  plaintiff's  seisin,  by  showing  that  a  stranger  was  seised,  though  he  does  not  claim 
under  him.  See  2  Greenl.  on  Evid.  §  331,  and  cases  there  cited.  See  also  2  Wheat. 
224,  note  (a),  where  the  authorities  are  collected  and  reviewed. 


Title  XII.     Trust.     Ch.  II.  s.  38—40.  401 

of  an  ejectment  brought  by  a  trustee  against  the  cestui  que  trust, 
and  an  ejectment  brought  by  any  other  person."  (a) 1 

*39.  In  the  case  of  Lade  v.  Holford,  it  appears  to  have  *415 
been  agreed  that  where  the  beneficial  occupation  of  a  trust 
estate  by  the  person  entitled  to  it,  has  given  reason  to  suppose 
that  there  was  a  conveyance  of  the  legal  estate  to  the  person 
who  was  equitably  entitled  to  it,  a  jury  may  be  directed  to  pre- 
sume such  a  conveyance.2  And  this  doctrine  is  confirmed  by  the 
following  case :  —  (b) 

40.  Upon  a  bill  in  Chancery  for  the  specific  performance  of  an 
agreement  to  purchase  a  farm,,  the  defendant  objected  to  the  title. 
The  estate  appeared  to  have  been  conveyed  in  1664,  by  way  of 
indemnity;  and  as  to  one  moiety  of  the  estate,  there  was  no 
provision  for  reconveying  it;  as  to  the  other  moiety  there  was 
such  a  provision  after  the  death  of  two  persons  then  living,  and 
eleven  years  after.     In  a  family  settlement,  executed  in  1694,  the 

(a)  Roe  v.  Reade,  8  Term  R.  118,  122.     Post,  c.  3.  §  51—62. 
(6)  3  Burr.  1901.     Doug.  721. 


i  See  ace.  Jackson  v.  Sisson,  2  Johns.  Cas.  321  ;  Jackson  v.  Chase,  2  Johns.  84 ; 
Jackson  v.  Pierce,  Ibid.  221 ;  Jackson  v.  Deyo,  3  Johns.  422  ;  Jackson  v.  Van  Slyck, 
8  Johns.  487  ;  Weakley  v.  Rogers,  5  East,  13S,  n. ;  Sinclair  v.  Jackson,  8  Cowen,  K. 
543.  In  some  of  the  United  States,  however,  an  equitable  title  is  in  some  cases  allowed 
to  be  set  up. 

2  But  they  will  not  be  directed  to  presume  a  conveyance,  where,  from  the  nature  of 
the.  trust,  and  the  objects  of  its  creation,  there  is  no  inconsistency  between  the  occu- 
pancy by  the  cestui  que  trust,  and  the  existence  of  the  legal  estate  in  the  trustee.  Doe 
v.  Swynimer,  1  Ld.  Ken.  R.  by  Hanmer,  385  ;  Doe  v.  Brightwen,  10  East,  583  ;  Doe  v. 
Davies,  1  Ad.  &  El.  430,  N.  S.  The  general  rule  is,  that  whenever  trustees  ought  to 
convey  to  the  beneficial  owner,  it  should  be  left  to  the  jury  to  presume  that  they  have 
so  conveyed,  whenever  such  presumption  can  reasonably  be  made.  Doe  v.  Sybourn. 
7  T.  R.  2;  Doe  v.  Staples,  2  T.  It. '696.  See  1  Greenl.  Evid.§  46.  "  This  rule,"  as 
Mr.  Best  remarks,  "  has  been  established  to  prevent  just  titles  from  being  defeated  by 
mere  matter  of  form,  but  it  is  not  easy  to  determine  the  practical  extent  of  it.  It  may, 
however,  be  stated  generally,  that  the  presumption  ought  to  be  one  in  favor  of  the 
owner  of  the  inheritance,  and  not  one  against  his  interest ; —  1  Phill.  &  Am.  Ev.  476  ; 
Doe  d.  Graham  v.  Scott,  11  East,  483  ;  Doe  d.  Burdett  v.  Wrighte,  2  B.  &  A.  720 ;  — 
and  the  rule  is  subject  to  this  further  limitation,  that  the  presumption  cannot  be  called 
for  where  it  would  be  a  breach  of  trust  in  the  trustees  to  make  the  conveyance;  — 
1  Phill.  &  Am.  Ev.  476  ;  Keene  d.  Byron  v.  Deardon,  8  East,  267.  On  the  same  prin- 
ciple, reconveyances  from  the  trustees  to  the  cestui  que  trust  will  be  presumed;  —  Doc  d 
Roede  v.  Rccdc,  8  T.  R.  122;  Hillary  v.  Waller,  12  Ves.  250,  251  ;  see  2  Sudg.  Vend. 
&  Pur.  196,  10th  ed. ;  — as  also  will,  under  proper  circumstances,  conveyances  from  old 
to  new  trustees.  Roe  d.  Ebcrall  v.  Lowe,  1  H.  Bl.  446."  See  Best  on  Presumptions, 
§  112. 

34* 


402  Title  XII.     Trust.     Ch.  II.  s.  40. 

conveyance  of  1664  was  excepted.  From  that  time  no  notice 
was  taken  of  it ;  but  the  estate  was  conveyed  by  the  persons  in 
possession,  as  if  they  were  seised  of  the  legal  estate.  So  that 
the  owners  had  acted  as  proprietors  of  the  fee  simple  for  a  hun- 
dred and  forty  years  ;  and  no  claim  appeared  to  have  ever  been 
made  on  the  estate,  under  the  deed  of  indemnity.  The  objection 
to  the  title  was  founded  on  the  legal  estate's  being  outstanding. 
To  which  it  was  answered,  that  a  reconveyance  of  it  ought  to 
be  presumed,  (a) 

Sir  W.  Grant  said,  that  length  of  time  did  not,  of  itself,  fur- 
nish the  same  sort  of  presumption,  in  this  case,  that  it  did  in  a 
case  of  adverse  possession.  Long  continued  possession  implied 
title ;  as,  if  there  was  a  different  right,  the  probability  was,  that 
it  would  have  been  asserted.  But  undisturbed  enjoyment  did 
not  show  whether  the  title  was  equitable  or  legal.  It  did  not 
follow,  however,  that  a  conveyance  of  the  legal  estate  could  not 
be  the  subject  of  presumption ;  though  the  presumption  was 
made  upon  a  different  ground.  Lord  Kenyon,  though  disinclined 
to  permit  ejectments  to  be  maintained  upon  equitable  titles, 
always  admitted  that  it  might  be  left  to  the  jury  to  presume  a 
conveyance  of  the  legal  estate.  On  what  ground  was  such  pre- 
sumption to  be  made  ?  On  this,  that  what  ought  to  have  been 
done,  should  be  presumed  to  have  been  done ;  when  the  purpose 
was  answered  for  which  the  legal  estate  was  conveyed,  it  ought  to 
be  reconveyed.  Presumptions  did  not  always  proceed  on 
416  *  a  belief  that  the  thing  presumed  had  actually  taken  *  place. 
Grants  were  frequently  presumed,  as  Lord  Mansfield  had 
said,  merely  for  the  purpose,  and  from  a  principle  of  quieting  the 
possession.  There  was  as  much  occasion  for  presuming  convey- 
ances of  legal  estates ;  as  otherwise  titles  must  forever  remain 
imperfect,  and  in  many  respects  unavailable,  when,  from  length 
of  time,  it  became  impossible  to  discover  in  whom  the  legal 
estate,  if  outstanding,  was  actually  vested.  If  it  could  be  ascer- 
tained at  what  period  the  legal  estate  ought  to  have  been  recon- 
veyed, he  saw  no  reason  why  the  presumption  of  its  being  recon- 
veyed at  that  period  should  not  be  made.  The  difficulty  was, 
that  by  the  deed  of  1664  it  was  only  as  to  a  moiety  of  the  estate, 

(a)  Hillary  v.  Waller,  12  Ves.  239.  Doe  ».  Lloyd,  Peake  on  Evid.  5th  ed.  App.  41.  See 
also  Skin.  77,  Lady  Stafford  v.  Llewellyn,  and  Keene  ».  Deardon,  8  East,  266.  1  Turn.  29, 
per  Lord  Eldon.    Cooke  v.  Soltau,  2  Sim.  &  Stu.  154.    Tenney  v.  Jones,  10  Bing.  75. 


Title  XII.     Trust.     Ch.  II.  s.  40-^1.  403 

that  any  time  was  limited  for  the  reconveyance.  It  could  not, 
however,  be  meant  that  the  legal  estate  in  any  part  should  con- 
tinue outstanding  forever.  The  conveyance  of  it  was  made  for 
a  purpose  that  must  have  some  limit.  It  was  by  way  of  security 
against  the  eviction  of  another  estate.  At  what  precise  moment 
the  danger  of  eviction  ceased,  it  was  impossible  to  say ;  but  if 
the  time  that  had  elapsed  without  claim,  one  hundred  and  forty 
years,  did  not  furnish  the  inference  that  none  could  be  made,  he 
did  not  know  what  period  would  be  sufficient  for  that  purpose. 
Mere  possibilities  ought  not  to  be  regarded.  The  Court,  as  Lord 
Hardwicke  said  in  the  case  of  Lyddal  v.  Weston,  "  must  govern 
itself  by  a  moral  certainty  ;  for  it  is  impossible,  in  the  nature  of 
things,  there  should  be  a  mathematical  certainty  of  a  good  title." 
The  evidence  of  actual  reconveyance  was  slight,  and  inconclu- 
sive. But  on  the  general  grounds  he  had  before  stated,  he  con- 
ceived there  was  no  Court  before  which  a  question  concerning 
this  title  could  come,  that  would  not,  under  all  the  circumstances 
of  the  case,  presume,  or  direct  a  jury  to  presume,  that  the  legal 
estate  had  been  reconveyed.  It  was  therefore  such  a  title  as  a 
purchaser  might  safely  take.  And  decreed  accordingly.  The 
decree  was  affirmed  by  Lord  Erskine.  (a) 

[41.  But. where,  from  the  nature  and  object  of  the  original 
conveyance  of  the  legal  estate  to  the  trustees,  there  is  no  incon- 
sistency between  the  equitable  ownership  and  the  fact  of  the 
legal  estate  being  suffered  to  remain  outstanding,  there,  it  seems, 
the  presumption  will  not  be  made.]  (b) 

(a)  Cowp.  215.  2  Atk.  19.    Doer.  Reed,  5  Barn.  &  Aid.  232.     S.  C.  Mad.  &  Geld,  7,  and 
Ib«  54.     Cooke  v.  Soltau,  2  Sim.  &  Stu.  154. 

(b)  Doe  v.  Swymmer,  1  Ld.  Keuyon  Rep.  by  Hanmer,  385.     Doe  v.  Bright-wen,  10  East, 
583. 


404 


CHAP.  III. 


RULES  EY  WHICH  TRUST  TERMS  ARE  GOVERNED. 


Sect.     1.  Terms  in  Gross. 

6.  Terms  attendant  on  the  In- 
heritance. 
9.  How  Terms  become  attendant. 
22.  When  a  Term  is  in  Gross. 
21.  A    Term    attendant   may   be- 
come a  Teftn  in  Gross* 
29.  Terms  attendant  are  Part  of 
the  Inheritance. 

31.  Are  real  Assets. 

32.  Not  forfeited  for  Felony. 

33.  Trust  Terms  will  protect  Pur- 

chasers from  Mesne   In- 
cumbrances. 


Sect.  39.  And  also  from  Dower. 

43.  Must  be  assigned  to  a  Trus- 
tee for  (he  Purchaser. 

45.  A  Term  will  not  protect  the 
Heir  from  Power. 

48.  Nor  the  Assignees  of  a  Bank- 

rupt. 

49.  Neither  Jointure  nor   Curtesy 

barred  by  a  Term. 
51.  Where  a   Term  is  a  Bar  in 
Ejectment. 


Section  1.  The  principles  upon  which  terms  for  years  are 
held  not  to  be  affected  by  the  Statute  of  Uses  have  been  already 
explained  ;  it  will  now,  therefore,  be  only  necessary  to  state  the 
rules  by  which  they  are  governed.  Terms  for  years  are  either 
vested  in  trustees  for  the  use  of  particular  persons  not  entitled  to 
the  freehold  and  inheritance  of  the  lands,  or  for  particular  pur- 
poses, in  which  cases  they  are  called  terms  in  gross ;  and  tlje 
persons  entitled  to  the  beneficial  interest  have  a  right  in  equity 
to  call  on  the  trustees,  or  persons  possessed  of  the  legal  estate  in 
such  terms,  for  the  rents  and  profits,  and  also  for  an  assignment 
of  the  terms. 

2.  The  cestui  que  trust  of  a  term  in  gross  has  the  same  power 
of  alienating  and  devising  it,  as  if  he  had  the  legal  estate.  It 
should,  however,  be  observed,  that  the  Stat.  1  Rich.  III.  does  not 
extend  to  trust  terms  ;  and  therefore  an  assignment  of  the  trust 
of  a  term,  by  the  cestui  que  trust,  will  not  pass  the  legal  estate  in 

the  term,  (a) 
418*        *3.   The  right  to  a  trust  term  in  gross,  vests  in  the 

(a)  Ante,  c.  2.  s.  6. 


Title  XII.     Trust.    Ch.  III.  s.  3—7.  405 

executors  or  administrators  of  the  cestui  que  trust;  and  where 
a  married  woman  is  cestui  que  trust  of  a  term,  her  husband 
has  the  same  rights  as  if  she  had  the  legal  estate,  (a) 

4.  It  is  said  that  the  trust  of  a  term  is  not  assets  at  law, 
within  the  Statute  of  Frauds,  for  that  statute  only  extends  to  a 
trust  of  lands  held  in  fee  simple.  But  it  is  equitable  assets,  in 
the  hands  of  the  executor,  (b) 

5.  Terms  of  this  kind  are  in  general  governed  by  the  same 
rules  as  legal  ones  ;  except  that  trust  terms  in  gross  are  capable 
of  being  settled  in  a  manner  not  allowed  in  the  limitation  of 
legal  terms ;  of  which  an  account  will  be  given  hereafter,  (c) 

6.  When  terms  for  years  became  fully  established,  and  the 
interest  of  the  termor  was  secured  against  the  effect  of  fictitious 
recoveries,  long  terms  were  frequently  created ;  and  although 
the  purposes  for  which  such  terms  had  been  raised  were  fully 
satisfied,  still  the  terms,  not  being  surrendered,  continued  to 
exist,  the  legal  interest  remaining  in  the  personal  representatives 
of  the  persons  to  whom  they  were  originally  limited.  But  as 
the  owners  of  the  inheritance  were  entitled  to  the  benefit  of 
them,  the  Court  of  Chancery  deemed  them  to  be  in  fact  united 
to  the  inheritance,  from  which  they  acquired  the  name  of  terms 
attendant  on  the  inheritance ;  for  otherwise  the  right  to  such 
terms  would  have  gone  to  the  executors  or  administrators  of  the 
persons  entitled  to  the  trusts  of  them,  as  part  of  their  personal 
estate;  and  the  freehold  and  inheritance  of  the  lands  would 
descend  to  the  heir  at  law.1 

7.  Thus  Lord  Hardwicke  has  said : — "  The  attendancy  of  terms, 
for  years  upon  the  inheritance,  is  the  creation  of  a  court  of  equity ; 
invented  partly  to  protect  real  property,  and  partly  to  keep  it  in 
the  right  channel.  In  order  to  it,  this  Court  framed  the  distinc- 
tion between  such  attendant  terms,  and  terms  in  gross  ;  notwith- 
standing that  in  the  consideration  of  the  common  law  they  are 

(a)  Tit.  8.  c.  1.     Prec.  in  Cha.  418.     1  Inst.  351  a.  n.  1. 

{b)  King  v.  Ballet,  2  Vern.  248.    Creditors  of  Sir  C.  Cox,  3  P.  Wins.  341.    Tit.  15.  c.  3.  s.  18. 

■(c)  Tit.  38.  c.  19. 

'.  The  nature  of  attendant  terras  and  the  doctrine  of  Equity  respecting  them,  are 
illustrated  by  Mr.  Butler,  in  his  note  249,  (13)  to  Co.  Lit.  290,  b.  See  also  Sugden, 
Vend.  &  Pur.  ch.  16;  4  Kent,  Comm.  87—94.  The  subject  is  more  fully  discussed 
by  Mr.  Coventry  in  his  learned  note  to  2  Pow.  on  Mortg.  p.  477,  a,  top.  491,  a, 
Rand's  ed. 


406  Title  XII.     Trust.     Gh.  III.  s.  7—9. 

both  the  same,  and  equally  keep  out  the  owner  of  the  fee  so  long 
as  they  subsist.  But  as  equity  always  considers  who  has  the 
right  in  conscience  to  the  land,  and  on  that  ground  makes  one 
man  a  trustee  for  another ;  and  as  the  common  law  allows  the 
possession  of  the  tenant  for  years  to  be  the  possession  of  the 
owner  of  the  freehold ;  this  Court  said,  where  the  tenant  for  years 
is  but  a  trustee  for  the  owner  of  the  inheritance,  he  shall 
419  *  not  *  keep  out  his  cestui  que  trust ;  nor,  pari  ratione, 
obstruct  him  in  doing  any  acts  of  ownership,  or  in  making 
any  assurances  of  his  estate.  Therefore,  in  equity,  such  a  term 
for  years  shall  yield,  ply,  and  be  moulded,  according  to  the  uses, 
estates,  or  charges  which  the  owner  of  the  inheritance  declares 
or  carves  out  of  the  fee.  Thus  the  dominion  of  real  property  was 
kept  entire."  (a) 

8.  Mr.  Fearne  has  also  observed,  that  "  without  such  attend- 
ancy,  property  in  the  same  lands,  united  in  the  same  owner, 
would  take  different  channels;  the  dominion  of  real  estates, 
instead  of  being  entire,  become  split  and  divided  between  the 
personal  and  real  representatives  ;  and  indeed  leave  the  real  repre- 
sentatives very  little  but  the  mere  name  of  property.  For  an 
inheritance  expectant  on  a  term  of  any  considerable  duration  is 
of  very  little  value.  So  necessary,  therefore,  is  the  attendancy 
of  terms,  under  the  circumstances  above  mentioned,  to  keep  real 
estates  in  a  right  channel,  that  the  very  existence  of  real  property, 
as  distinguished  from  the  personal,  seems  in  a  great  measure  to 
depend  upon  it.  For  as  there  are  few  estates  in  which  there  are 
not  such  terms,  if  they  are  not  to  be  considered  as  attendant,  the 
whole  substance  and  value  of  the  estate  would  in  them  devolve 
to  the  executor,  as  personal  property;  whilst  the  heir  or  real 
representative  would  be  left  destitute  of  every  thing  but  the 
shadow  of  the  inheritance,  (b) 

*  9.  A  term  may  become  attendant  on  the  inheritance,  either  by 
an  express  declaration  of  trust,  or  by  implication  of  law.  Thus, 
where  a  satisfied  term  is  assigned  to  a  trustee,  upon  an  express 
trust  to  attend  the  inheritance,  the  owner  of  such  inheritance 
acquires  a  right  to  the  term  by  the  declaration  of  the  parties. 
But  there  are  many  cases  where  no  such  declaration  is  made ; 

(a)  Willougliby  v.  Willoughby,  1  Term  E.  763.  (b)  Collect.  Jur.  vol.  2.  No.  6. 


Title  XII.     Trust.     Ch.  III.  s.  9—12.  407 

and  then  it  becomes  a  question,  in  equity,  whether  it  is  a  term 
in  gross,  or  a  term  attendant. 

10.  In  consequence  of  the  maxim  in  equity,  that  "  that  should 
have  the  satisfaction  which  has  sustained  the  loss,"  it  has  been 
often  determined  that,  where  a  term  is  carved  out  of  the  inheri- 
tance for  any  particular  purpose,  when  that  purpose  is  satisfied, 
the  term  becomes  attendant  on  the  inheritance ;  for  the  inheri- 
tance sustains  the  loss  by  keeping  the  term  on  foot,  and  therefore 
should  have  it  in  satisfaction,  (a) 

11.  A  woman,  before  marriage,  raised  a  term  of  1000  years, 
upon  trust,  that  her  intended  husband  should  receive  the 
profits  *  during  their  joint  lives;  if  they  should  have  any     *420 
children,  in  trust  for  such  children  during  the  residue  of 

the  term.  The  husband  died  without  children;  the  wife  sur- 
vived, married  another  husband,  who  survived,  and  took  out  ad- 
ministration to  her.  The  question  was,  whether  the  term  should 
go  to  the  husband,  or  attend  the  inheritance.  Lord  Cowper  said, 
this  was  only  an  unskilful  declaration,  not  the  intent  of  the 
party ;  the  particular  purpose  being  served,  it  must  attend  the 
inheritance.  If  the  term  and  inheritance  had  been  in  the  same 
hands,  it  would  have  merged ;  so  here  it  should  be  attendant  in 
equity.  (&) 

12.  [The  cases  have  established  the  following  distinctions  with 
respect  to  attendant  terms  created  for  the  purpose  of  securing 
charges  upon  the  inheritance. 

When  a  tenant  for  life,  or  a  tenant  in  tail,  after  possibility  of 
issue  extinct,  who,  for  the  purposes  of  alienation,  is  but  a  tenant 
for  life,  pays  off  the  charge  secured  by  the  term,  there  primd  facie 
he  will  be  considered  a  creditor  on  the  estate,  and  in  the  absence 
of  evidence  of  a  contrary  intention,  the  term  will  not  be  deemed 
attendant  but  in  gross  for  his  benefit  to  the  extent  of  the  incum- 
brance, and  will  accordingly  devolve  upon  his  personal  represen- 
tatives ;  he  may,  however,  by  express  declaration,  or  other  evi- 
dence of  intention  to  exonerate  the  inheritance,  render  the  term 
attendant  thereon. 

But  the  presumption  is  otherwise  with  respect  to  a  tenant  in 
tail,  for  as  he  represents  the  inheritance,  primd  facie,  it  will  be 

(a)  Francis  Max.  in  Eq.  21,  22.     Treat,  of  Eq.  B.  2.  c.  4.  s.  5. 
(6)  Best  v.  Stampford,  1  P.  Wms.  374. 


408  Title  XII.     Trust.     Ch.  III.  s.  12—13. 

presumed  that  he  meant  to  discharge  the  estate,  and  unless  there 
be  evidence  of  a  contrary  intention,  the  term  will  attend. 

But  where  a  tenant  in  tail  in  remainder,  expectant  upon  a  pre- 
vious life-estate  and  failure  of  issue,  pays  off  an  old  mortgage, 
and  takes  an  assignment  of  the  term  ;  the  rule  is  otherwise,  since 
the  principle  applicable  to  a  tenant  in  possession  paying  off  a 
charge  does  not  apply  to  one  whose  estate  might  be  defeated  by 
the  birth  of  issue  of  another  person.  Where  the  owner  of  the 
whole  inheritance  becomes  entitled  to  such  a  charge,  there  the 
charge  will  merge,  and  of  course  the  term  will  become  attendant 
if  kept  outstanding,  (a)    . 

13.  The  case  of  Huntingdon  v.  Huntingdon,  may  be  here  dis- 
tinguished as  not,  in  any  degree,  militating  against  the  preceding 
distinction,  as  regards  a  tenant  for  life.]  There  Lord  and 
421  *  Lady  Huntingdon  settled  lands  which  were  *  the  estate 
of  Lady  H.,  to  the  use  of  Lady  H.  for  life,  remainder  to 
their  eldest  son  in  tail ;  with  a  power  to  Lord  and  Lady  H.  to 
revoke  and  limit  new  uses.  Lord  H.  prevailed  on  Lady  H.  to 
exercise  this  power  so  far  as  to  demise  the  premises  for  1000 
years  by  way  of  mortgage,  for  raising  X4500  for  Lord  H.,  who 
covenanted  to  pay  off  the  money.  Lord  H.  paid  off  the  mortgage, 
took  an  assignment  of  the  term  to  a  trustee  for  himself,  and  de- 
vised it  for  the  benefit  of  his  younger  children.  Upon  the  death 
of  Lord  H.,  his  eldest  son,  who  took  the  inheritance,  filed  his  bill 
against  the  personal  representatives  of  his  father  and  the  trustees 
of  the  term,  praying  that  it  might  be  assigned  to  attend  the  in- 
heritance, free  from  incumbrances.  Lord  K.  Wright  decreed  that 
the  plaintiff  must  redeem  the  mortgage.  But  on  an  appeal  to 
the  House  of  Lords,  the  decree  was  reversed,  and  the  term  di- 
rected to  be  assigned  to  the  appellant ;  because,  when  Lord  H. 
paid  off  the  mortgage,  the  purpose  for  which  the  term  was  created 
being  satisfied,  it  became  attendant  on  the  inheritance.  (6) 

[In  the  preceding  case,  Lord  H.  was  not  tenant  for  life,  but  at 
most  seised  jure  uxoris  ;  the  mortgage  was  made  for  his  exclusive 
accommodation ;  and  Lady  H.  was  no  party  to  the  assignment 
of  the  term  to  the  trustee  ;  and,  as  urged  in  the  argument  for  the 

(a)  Jones  r.  Morgan,  1  Bro.  C.  C.  218.  Wyndham  v.  Earl  Egremont,  Ambl.  753.  Countess  of 
Shrewsbury  v.  Earl  of  Shrewsbury,  1  Ves.  J.  233.  St.  Paul  v.  Ld.  Dudley  &  Ward,  15  Ves. 
173.    Wigsell  v.  Wigsell,  2  Sim.  &  Stu.  364. 

(b)  Huntingdon  v.  Huntingdon,  2  Bro.  P.  C.  1.  Davidson  v.  Foley,  2  Bro.  R.  203.  Ante, 
c.  1.  s.  56. 


Title  XII.     Trust.     Ch.  III.  s.  13—19.  409 

appellant,  it  was  against  equity  that  Lord  H.  should  be  consid- 
ered a  mortgagee  or  incumbrancer  on  the  estate  for  having 
discharged  his  own  debt.] 

14.  Where  a  person  purchases  the  freehold  and  inheritance  of 
lands  in  his  own  name,  and  obtains  an  assignment  of  an  out- 
standing- term  to  a  trustee  for  himself;  such  term  will  be  consid- 
ered as  attendant  on  the  inheritance. 

15.  R.  Tiffin  purchased  a  freehold  estate,  took  the  conveyance 
in  his  own  name,  and  an  assignment  of  a  mortgage  term  for 
years  in  the  names  of  ,two  trustees.  Lord  Nottingham  held  that 
this  term  was  attendant  on  the  inheritance,  (a) 

16.  J.  Hoole  took  an  assignment  of  a  term  for  years,  which 
was  in  mortgage  to  one  Shepherd,  who  was  a  trustee  for  him  ; 
and  afterwards  purchased  the  inheritance  of  the  same  premises  in 
his  own  name.  Lord  C.  J.  Wilmot  said,  when  Hoole  purchased 
the  fee,  he  became  both  the  hand  to  receive,  and  the  hand  to  pay 
off  the  mortgage  money.  It  wrought  an  extinguishment  of  the 
debt  due  on  the  mortgage,  and  the  term  was  gone ;  though  not 
extinguished  in  point  of  law,  because  it  was  in  Shepherd. 

Yet  it  became  *  attendant  on  the  inheritance  ;  and  must     *  422 
follow  it  in  point  of  law,  as  much  as  if  it  had  been  made 
to  do  so  by  the  act  of  the  party,  (b) 

17.  "Where  a  person  takes  a  conyeyance  of  the  freehold  in  the 
name  of  a  trustee,  and  an  assignment  of  the  term  in  his  ovm  name, 
the  consequence  is  the  same. 

18.  A  woman  took  a  mortgage  for  1000  years  in  the  name  of 
her  brother,  afterwards  purchased  the  inheritance  in  the  name  of 
another,  and  the  term  of  years  was  assigned  to  her.  The  ques- 
tion was,  whether  this  term  belonged  to  the  heir,  or  the  personal 
representative.  A  difference  was  taken  at  the  bar,  namely,  that 
if  she  had  first  purchased  the  fee,  and  afterwards  the  lease,  it 
should  wait  on  the  inheritance ;  but  here  the  lease  was  first  in 
her.  Lord  Keeper  North  said,  there  was  no  difference  in  reason  ; 
and  decreed  that  the  heir  should  have  the  lease,  to  attend  the 
inheritance,  (c) 

19.  A  citizen  and  freeman  of  London,  possessed  of  a  lease  of 
lands,  bought  the  reversion  and  inheritance,  and  died.  The 
question  was,  whether,  as  there  was   no  declaration  that  this 

(a)  Tiffin  v.  Tiffin,  1  Vera.  1.    Whitchurch  v.  Whitchurch,  2  P.  Wins.  236.   9  Mod.  124. 

(b)  Goodright  r.  Shales,  2  Wils.  E.  329.  (c) v.  Langton,  2  Cha.  Ca.  156. 

vol.  i.  35 


410  Title  XII.     Trust.     Ch.  III.  s.  19—21. 

lease  should  attend  the  inheritance,  it  was  part  of  the  personal 
estate  of  the  purchaser.  Decreed  that  it  was  attendant  upon  the 
inheritance  ;  and,  upon  a  rehearing,  the  decree  was  affirmed  by 
Lord  Keeper  North,  (a) 

20.  It  may  be  collected  from  the  preceding  cases,  that  when- 
ever a  term  would  merge  in  the  inheritance,  if  both  were  in  the 
same  person,  it  shall  be  considered  as  attendant  on  the  inheri- 
tance. And  in  the  following  modern  case,  it  was  resolved  that 
where  a  person,  having  a  term  for  years,  contracted  for  the  pur- 
chase of  the  inheritance,  and  died  without  having  a  conveyance 
of  it,  the  term  was  attendant. 

21.  A  bill  was  filed  by  residuary  devisees  and  legatees,  praying 
that  the  will  might  be  established,  &c. ;  that  the  plaintiffs  might 
be,  declared  entitled  to  the  benefit  of  a  contract  by  the  testator, 
to  purchase  an  estate,  and  the  contract  completed.  The  testator 
had  entered  into  the  contract,  after  the  execution  of  his  will,  for 
the  purchase  of  the  inheritance  of  the  estate,  being  at  that  time 
lessee  of  the  premises  for  a  term  of  years  ;  and  died  before  any 
conveyance  was   made.     The  plaintiffs,  therefore,  if  the  Court 

should  be  of  opinion  that  they  were  not  entitled  to  the 
423  *     benefit  of  *  the  contract,  claimed  the  residue  of  the  term, 

as  residuary  legatees.  The  defendant,  the  heir  at  law, 
claimed  the  inheritance  of  the  estate  contracted  for,  praying  that 
the  purchase  might  be  completed  out  of  the  personal  estate  ;  in- 
sisting that  the  testator  became  seised  of  the  inheritance  from  the 
date  of  the  contract,  and  that  the  term  was  attendant  upon  the 
inheritance. 

Sir  W.  Grant,  M.  R., — "  I  take  the  case  to  be  this  : — The  tes- 
tator had  a  lease  in  his  own  name,  had  contracted  for  the  purchase 
of  the  inheritance,  and  died  before  the  conveyance  to  him  was 
completed.  Having  contracted  for  the  purchase  of  the  inheri- 
tance, he  became  complete  owner  of  the  whole  estate.  For  it  is 
clear  in  this  court,  a  party,  who  has  contracted  for  the  purchase 
of  an  estate,  is  equitable  owner ;  the  vendor  is  a  trustee  for  him. 
If  he  had,  by  his  will,  afterwards  disposed  of  all  his  lands,  this 
estate  would  have  passed  by  that  will.  I  thought  it  had  been 
long  established,  that  where  the  same  person  has  the  inheritance 
and  the  term  in  himself,  though  he  has  in  one  the  equitable  in- 

(«)  Dowse  v.  Percival,  1  Vera.  104. 


Title  XII.     Trust.    Ch.  III.  s.  21—25.  411 

terest,  and  the  legal  estate  in  the  other,  the  inheritance  draws  to 
itself  the  term,  and  makes  it  attendant.  That  appears  from 
Whitchurch  v.  Whitchurch,  Goodright,  and  Shales,  and  many 
other  cases.  Declare  the  heir  at  law  entitled  to  the  premises 
described  in  the  term."  (a) 

22.  The  trust  of  a  term  for  years  may,  however,  belong  to  the 
person  seised  of,  or  entitled  to  the  inheritance  ;  and  yet  the  term 
may  not  be  attendant.  For  where  a  person  indicates,  in  any 
manner,  an  intention  of  separating  a  term  from  the  inheritance, 
it  will  be  considered  as  a  term  in  gross. 

23.  A  bein?  seised  in  fee,  demised  his  estate  to  a  trustee  for 
ninety-nine  years,  in  trust  for  himself  and  his  wife  for  then:  lives, 
and  the  life  of  the  survivor,  and  afterwards,  in  trust  for  the  heirs 
of  their  bodies ;  in  default  of  such  issue,  to  the  heirs  of  the  body 
of  the  husband,  remainder  to  the  heirs  of  the  survivor.  They 
had  issue  a  son  ;  the  husband  died  ;  after  which  the  son  died  in 
the  lifetime  of  his  mother,  who  took  out  administration  to  her 
husband  and  son,  and  assigned  the  term.  After  the  death  of 
the  wife,  it  was  contended,  by  the  heir  of  A,  that  all  the  trusts 
of  this  term  either  became  void  by  accident,  or  were  so  in  their 
creation ;  so  that  the  term  had  no  subsistence  for  the  benefit  of 
the  personal  representatives  of  any  of  the  parties  ;  but 
should  be  considered  as  attendant  on  the  inheritance.  *  It  *424 
was  however,  decreed  by  Sir  J.  Jekyll,  that  this  term 
should  not  be  attendant  on  the  inheritance  ;  for  that  the  party 
who  raised  it,  and  had  power  to  sever  it  from  the  inheritance, 
showed  his  intention  to  do  so,  by  limiting  the  trust  to  the  sur- 
vivor of  him  and  his  wife,  and  the  heirs  of  the  survivor ;  which, 
though  it  was  a  void  limitation,  yet  sufficed  to  show  his  intent  to 
sever  such  term  from  the  reversion,  (b) 

24.  Where  there  is  an  intervening  legal  estate,  and  beneficial 
interest  between  the  term  and  the  inheritance,  the  term  will  be 
considered  to  be  in  gross ;  because,  in  that  case,  it  would  not 
merge  in  the  inheritance. 

25.  Sir  A.  Chadwick  purchased  an  estate,  in  fee  simple,  from 
Mrs.  Rudger.  There  being  an  outstanding  term  in  a  trustee,  a 
derivative  lease  of  it  was  granted  to  a  trustee  for  Sir  A.  C,  with 

(a)  Capel  r.  Girdler,  9  Ves.  509. 

(b)  Hayter  v.  Rodd.  1  P.  Wins.  362. 


412  Title  XII.     Trust.     Ch.  III.  s.  25—26. 

nominal  reversion  of  eleven  days  to  the  trustee  of  Mrs.  H.     The 
question  was,  whether  this  term  was  in  gross,  or  attendant. 

Lord  Thurlow  said,  every  term  standing  out,  was,  at  law,  a 
term  in  gross.  If  it  was  different  in  equity,  it  must  be  by  affect- 
ing the  person  holding  the  term,  with  a  trust,  to  attend  the  in- 
heritance. This  might  be  by  two  ways  ;  by  express  declaration ; 
and  then,  whether  the  term  would,  or  would  not  merge,  and 
whether  the  reversion  were  real,  or  only  nominal,  it  must  be 
attendant  on  the  inheritance.  Here  it  was  not  upon  express 
declaration ;  then  it  must  arise  from  implication  of  law,  founded 
on  the  Statute  of  Frauds,  which  forbids  any  trust,  except  by 
writing  or  implication  of  law.  It  was  said  to  be  extremely  plain 
that  Sir  A.  C.  meant  to  consolidate  the  interests ;  this  was  beg- 
ging the  question.  It  was  true  he  meant  to  take  the  largest  inter- 
est he  could ;  but  it  was  by  no  means  apparent  that  he  meant 
to  consolidate  the  interests.  He  laid  no  stress  on  the  days  of 
reversion,  for  it  tvas  meant  only  as  a  nominal  reversion;  during 
that  time  the  rent  would  be  to  the  original  lessor ;  but  they  did 
not  mean  to  reserve  a  substantial  interest. 

It  would  be  necessary  there  should  be  an  express  trust  to  make 
this  attendant  on  the  inheritance.  The  transaction  did  not  sup- 
ply a  necessary  construction  of  law.  It  was  a  very  nice  and 
new  point,  whether  the  intent  to  purchase  the  whole  interest  was 
sufficient  to  make  the  term  attendant  upon  the  inheritance. 
The  impossibility  he  was  under  of  purchasing  the  ivhole,  rendered 
an  express  declaration  necessary  to  make  it  attend  the  inheri- 
tance, (a) 
425  *  *  26.  Sir  Edward  Sugden  has  observed  on  this  case,  that 
at  first  sight  it  seemed  impossible  to  reconcile  those  parts 
of  the  judgment  which  are  printed  in  italics.  But  that  it  ap- 
peared from  an  opinion  of  Mr.  Fearne's,  in  consequence  of  which 
the  cause  was  reheard,  that  rents  were  reserved  upon  the  leases 
granted  by  the  trustees  to  Sir  A.  C,  and  the  usual  covenants 
were  entered  into  by  him  ;  the  trustees  being  restrained  to  that 
mode  of  making  a  title  by  their  trust,  which  required  a  reserva- 
tion of  rent,  and  the  usual  covenants ;  this  fact,  at  once,  recon- 
ciled every  part  of  the  judgment.  Lord  Thurlow  was  of  opinion, 
that   the   reversion  itself  was  immaterial;    but  that   the   rents 

(a)  Scott  v.  Fenhouillet,  1  Bro.  C.  C.  69. 


Title  XII.     Trust.    Ch.  III.  s.  26—29.  413 

reserved  by  the  leases  rendered  an  express  declaration  necessary, 
to  make  the  terms  attend  the  inheritance.  Mr.  Fearne  was  also 
of  opinion,  that  the  terms  would  not  be  attendant,  if  there  was 
any  intervening  estate,  and  beneficial  interest,  in  any  third  per- 
son to  divide  the  ownership  of  the  term  from  the  inheritance. 
But  as  he  was  told  that  the  rents  reserved  to  the  trustees  upon 
the  terms  were  afterwards  purchased  by  Sir  A.  C,  he  thought  the 
terms  did  attend  the  inheritance,  although  there  was  not  an 
express  declaration  for  that  purpose  ;  and  he  expressly  delivered 
his  opinion,  subject  to  this  fact,  which  he  had  learned  from  verbal 
information  only.  By  Lord  Thurlow's  decree  on  the  rehearing, 
it  appears  clearly  that  the  rents  were  not  purchased ;  and  conse- 
quently, that  Mr.  Fearne  was  misinformed,  (a) 

27.  In  the  case  of  Willoughby  v.  Willoughby,  Lord  Hardwicke 
saySj — «  A  term  attendant  on  the  inheritance  may  be  disannexed, 
and  turned  into  a  term  in  gross,  by  the  absolute  owner  of  the 
inheritance;  and  so  it  is  admitted  by  Serjeant  Maynard  in  the 
Duke  of  Norfolk's  case ;  or  it  may  be  made  to  become  a  term 
in  gross,  upon  a  contingency,  according  to  the  resolution  in  that 
case."  (b) 

28.  So  it  was  said  by  Lord  Commissioner  Raymond,  that 
where  a  man  has  a  term  for  years,  which,  by  intendment  of  law 
only,  attends  the  inheritance,  certainly  he  has  a  power  to  sever 
such  a  term  from  the  inheritance,  if  he  should  assign  it  to  one 
man,  and  mortgage  the  inheritance  to  another ;  in  such  case,  the 
term  would  not  attend  the  inheritance,  but  become  a  term  in 
gross. (c) 

29.  Terms  attendant  on  the  inheritance  are  considered  as  abso- 
lutely annexed  to  the  inheritance,  and  are,  therefore,  not  subject 
to  those  rules   by   which  terms  in  gross  are   governed. 

*  They  follow  all  alienations  made  of  the  inheritance,  and  *  426 
also  the  descent  to  the  heir ;  are  capable  of  being  entailed, 
and  limited  over  after  a  general  failure  of  issue ;  provided  the 
inheritance  is  limited  in  the  same  manner.  And  where  a  com- 
mon recovery  was  suffered  of  the  inheritance,  it  would  bar  the 
entail  and  remainders  over  of  the  term,  as  well  as  those  of  the 
freehold ;  for  the  term  can  no  longer  attend  an  estate  tail  which 
is  destroyed ;  nor  can  the  trustee,  who  is  but  an  instrument  to 

(a)  Sugd.  Law  of  Vend.  6th  ed.  442.     9  Ves.  510.     Collect.  Jur.  vol.  2.  297. 
(4)  3  Cha.  Ca.  46.    Tit.  38,  c.  19.  (c)  9  Mod.  127. 

35* 


414  Title  XII.     Trust    Ch.  III.  s.  29—34. 

protect  others,  have  the  term  to  his  own  use  ;  so  that  it  must 
thenceforth  attend  on  the  inheritance  in  fee.  (a) 

30.  A  term  which  is  attendant  on  the  inheritance  is  so  fully 
considered  as  part  of  it,  and  conjoined  to  it,  and  not  as  a  chattel 
real,  that  it  does  not  pass  by  a  will  of  chattels ;  but  only  by  a 
will  executed  in  such  a  manner  as  is  required  to  pass  freehold 
estates,  (b) 

31.  Terms  attendant  on  the  inheritance  are  real  assets  in  the 
hands  of  the  heir,  for  the  payment  of  all  such  debts  as  are 
chargeable  on  the  inheritance ;  because  such  terms  are  annexed 
to  the  inheritance,  which  is  real  assets.  And  where  the  inheri- 
tance is  in  trustees,  and  a  person  has  a  term  in  his  own  right 
which  is  attendant  on  the  inheritance,  and  dies  indebted,  the 
term  will  be  liable  to  his  debts  ;  for  it  is  assets  at  law,  and  equity 
follows  the  law.  (c) 

32.  It  was  determined  in  the  case  of  the  Attorney- General  v. 
Sir  G.  Sands,  that  the  trust  of  a  term  attendant  on  the  inheri- 
tance was  not  forfeited  by  the  attainder  for  felony  of  the  cestui 
que  trust ;  because  it  was  no  more  than  an  accessary  to  the  in- 
heritance, which  was  not  forfeited,  (d) 

33.  One  of  the  great  objects  of  the  common  law  is  to  protect 
and  secure  honest  purchasers  from  all  prior  claims  and  incum- 
brances. It  is  to  this  principle  that  fines  and  non-claim,  descents 
which  take  away  entries,  and  collateral  warranties,  owe  their 
origin  and  effect.  The  courts  of  equity,  whose  duty  it  is  to 
follow  the  common  law,  soon  adopted  the  same  doctrine ;  and 
laid  it  down  as  a  rule,  that  an  honest  purchaser,  without  notice  of 
any  defect  in  the  title  to  the  lands  purchased,  or  of  any  incum- 
brance on  them,  at  the  time  of  his  purchase,  shall  not  have  his 
title  impeached  in  equity.  Neither  shall  he  be  compelled  to  dis- 
cover any  writings  or  other  things  which  may  weaken  it ;  nor 
will  the  Court  of  Chancery  take  from  him  any  advantage  by 

which  he  may  defend  himself  at  law.  (e) 
427*        *34.  In   consequence   of  these  principles,  it  has  been 
long  settled  by  the  Court  of  Chancery,  that  where  a  per- 

(«)  Collect.  Jur.  vol.  1.  297.     1  Term  R.  766. 
(&)  1  Vent.  194.     Tit.  38.  c.  5. 

(c)  Tit.  1.    Thruxton  v.  Attorney-General,  1  Vern.  340.    Dowse  v.  Percival,  1  Vera.  104. 

(d)  Ante,  c.  2. 

(e)  1  Ab.  Eq.  333.  2  P.  Wms.  491.  Shirley  v.  Fagg.  1  Cha.  Ca.  68.  See  1  Vera.  52. 
Jerrard  v.  Saunders,  2  Ves.  jun.  454. 


Title  XII.     Trust.     Oh.  III.  s.  34—35.  415 

son  purchases  an  estate,  without  having  notice,  at  the  time  of  his 
purchase,  of  any  incumbrance  affecting  it ;  if  he  afterwards  finds 
out  that  there  are  incumbrances,  and  upon  such  discovery  obtains 
an  assignment  of  a  prior  outstanding  term  for  years,  whether 
in  gross  or  attendant,  to  a  trustee  for  himself;   the   Court  of 
Chancery  will  not  interfere  to  set  aside  such  a  term,  though  it 
be  a  satisfied  one  ;  so  that  the  purchaser,  having  a  good  title  at 
law,  by  means  of  the  term,  will  be  thereby  secured  from  such 
mesne  incumbrance.     The  reason  is,  that  the  circumstance  of  his 
purchasing  without  notice,  gives  him  equal  equity  with  the  mesne 
incumbrancer  ;   and  by  obtaining  an  assignment  of  a  prior  term, 
he  acquires  the  legal  estate  ;  so  that  he  comes  within  the  maxim, 
that  where  equity  is  equal,  the  law  must  prevail.     Besides,  the 
mesne  incumbrancer,  having  only  a  title  in  equity,  cannot  prevail 
against  one  who  has  an  equal  title  in  equity,  and  also  the  legal 
estate ;  it  being  a  maxim  in  chancery,  that  in  (squali  jure  melior 
est  conditio  possidentis.     Lord  Nottingham  has  said,  that  prece- 
dents of  this  kind  are  very  ancient  and  numerous,  where  the  Court 
has  refused  to  give  assistance  against  a  purchaser,  either  in  favor 
of  the  heir  or  the  widow,  the  fatherless  or  creditors,  or  to  one 
purchaser  against  another.  (a)f 

35.  In  the   case  of  Willoughby  v.  Willoughby,  Lord  Hard- 
fa)  Treat,  of  Eq.  B.  3.  c.  3.  s.  1,  2,  3.     Vide  Wortley  v.  Birkhead,  tit.  15,  c.  5.    Francis, 
61.     Finch's  R.  103. 


[t  Lord  Hardwicke  has  thus  explained  this  doctrine :— "  As  to  the  equity  of  this 
Court,  that  a  third  incumbrancer,  having  taken  his  security  or  mortgage  without  notice 
of  the  second  incumbrance,  and  then,  being  puisne  taking  in  the  first  incumbrance,  shall 
squeeze  out,  and  have  satisfaction  before  the  second.  That  equity  is  certainly  estab- 
lished in  general,  and  was  so  in  Marsh  v.  Lee,  (tit.  15,  c.  5,)  by  a  very  solemn  deter- 
mination, by  Lord  Hale,  who  gave  it  the  term  of  the  creditor's  tabula  in  naufrarjio ;  that 
is  the  leading  case.  Perhaps  it  might  be  going  a  good  way  at  first ;  but  it  has  been 
followed  ever  since  ;  and  I  believe  was  rightly  settled,  only  on  this  foundation,  by  the 
particular  constitution  of  the  law  of  this  country.  It  could  not  happen  in  any  other 
country  but  this,  because  the  jurisdiction  of  law  and  equity  is  administered  here  in  dif- 
ferent courts,  and  creates  different  kinds  of  rights  and  estates.  As  courts  of  equity 
break  in  upon  the  common  law,  where  necessity  and  conscience  require  it,  still  they 
allow  superior  force  and  strength  to  a  legal  title  to  estates  ;  therefore,  when  there  is  a 
legal  title,  and  equity  of  one  side,  this  Court  never  thought  fit  that  by  reason  of  a  prior 
equity  against  a  man  who  had  a  legal  title,  that  man  should  be  hurt;  and  this  by  reason 
of  that  force  this  Court  necessarily  and  rightly  allows  to  the  common  law,  and  to  legal 
titles.  But  if  this  had  happened  in  any  other  country,  it  could  never  have  been  made 
a  question.  For  if  the  law  and  equity  arc  administered  by  the  same  jurisdiction,  the 
rule,  qui  prior  est  tempore  potior  est  in  jure,  must  hold."     2  Vesey,  573.) 


416  Title  XII.     Trust.     Ch.  III.  5.  35. 

428  *  wicke,  *  after  stating  the  origin  and  nature  of  trust  terms 
for  years,  proceeds  in  these  words : — "  What  kind  of 
p-rantee  or  owner  of  the  inheritance  is  entitled  in  this  court  to 
the  protection  of  such  a  term  ?  or,  in  other  words,  in  whose 
hands  such  a  term  shall  be  allowed  to  protect  the  inheritance  ? 
In  the  first  place,  he  must  be  a  purchaser  for  a  price  paid,  or  for 
a  valuable  consideration  ;  he  must  be  a  purchaser  bonce  fidei,  not 
affected  with  any  fraud  or  collusion ;  he  must  be  a  purchaser 
without  notice  of  the  prior  conveyance,  or  of  the  prior  charge  or 
incumbrance  ;  for  notice  makes  him  come  in  fraudulently.  If  he 
has  no  notice,  and  happens  to  take  a  defective  conveyance  of  the 
inheritance ;  defective  either  by  reason  of  some  prior  conveyance, 
or  of  some  prior  charge  or  incumbrance ;  and  if  he  also  take  an 
assignment  of  the  term  to  a  trustee  for  him,  or  to  himself,  where 
he  takes  the  conveyance  of  the  inheritance  to  his  trustee  ;  in  both 
these  cases,  he  shall  have  the  benefit  of  the  term  to  protect  him. 
That  is,  he  may  make  use  of  the  legal  estate  of  the  term  to  de- 
fend his  possession ;  or  if  he  has  lost  the  possession,  to  recover  it 
at  common  law,  notwithstanding  that  his  adversary  may  at  law 
have  the  strict  title  to  the  inheritance.  This  made  me  say,  that 
in  those  cases  the  Court  often  disannexes  the  trust  of  the  term 
from  the  legal  fee ;  but  still  in  support  of  right.  For  if  a  man 
come  in  fairly  and  bond  fide,  and  has  paid  a  price  for  the  land, 
and  acquired  an  estate  in  it,  which  the  law  will  support,  (a  plank 
by  which  at  law  he  may  save  himself  from  sinking,)  there  can 
be  no  ground  in  equity  or  conscience  to  take  it  from  him.  This 
is  the  meaning  of  what  is  generally  expressed  by  saying,  that 
where  a  man  has  both  law  and  equity  on  his  side,  he  shall  not 
be  hurt  in  a  court  of  equity.  It  was  once  doubted  whether,  if 
the  term  were  vested  in  a  third  person,  a  trustee,  generally,  and 
not  in  the  party  himself,  he  should  be  allowed  the  benefit  of  it 
in  equity ;  because  the  Court  ought  to  determine  for  whom  the 
stranger  was  a  trustee  ;  and  then  the  rule  is,  qui  prior  est  tempore 
potior  est  jure.  But  this  was  settled  by  Lord  Cowper,  in  the 
case  of  Wilkes  v.  Boddington.  He  lays  it  down  to  be  a  rule  in 
equity,  that  where  a  man  is  a  purchaser  for  a  valuable  considera- 
tion, without  notice,  he  shall  not  be  annoyed  in  equity ;  not  only 
where  he  has  a  prior  legal  estate,  but  where  he  has  a  better  right 
to  call  for  the  legal  estate  than  his  adversary."  (a) 

(a)  Willoughby  v.  Willoughby,  1  Term  K.  763.  Ante,  s.  7.   Wilkes  v.  Boddington,  3  Vern.  599. 


Title  XII.     Trust.     Ch.  III.  s.  36—40.  417 

36.  Where  a  term  for  years  is  vested  in  a  trustee,  wpow 

an  express  *  trust,  a  purchaser  shall  not  protect  himself  by     *  429 
taking  an  assignment  of  such  term,  after  notice  of  the 

trust. 

37.  Ann  Bayley,  being  possessed  of  a  term  for  years,  made  a 
voluntary  settlement  thereof,  in  trust  for  herself  for  life,  remain- 
der to  her  daughter  Isabella  for  life,  remainder  to  her  children. 
Isabella  mortgaged  the  lands  in  question  for  £200  to  the  plaintiff, 
who  pretended  he  had  no  notice  of  the  settlement ;  but  hearing 
of  it  after,  he  got  an  assignment  of  the  term  from  the  trustees,  (a) 

per  Cur. — Though  a  purchaser  may  buy  in  an  incumbrance, 
or  lay  hold  of  any  plank  to  protect  himself,  yet  he  shall  not  pro- 
tect himself  by  the  taking  a  conveyance  from  a  trustee  after  he 
had  notice  of  the  trust.  For,  by  taking  a  conveyance  with  no- 
tice of  the  trust,  he  himself  becomes  the  trustee ;  and  must  not, 
to  get  a  plank  to  save  himself,  be  guilty  of  a  breach  of  trust,  (b) 

38.  An  assignment  of  a  term  for  years  will  not  protect  a  pur- 
chaser from  a  crown  debt;  of  which  an  account  will  be  given 
hereafter,  (c) 

39.  A  term  for  years  will  protect  a  purchaser  for  a  valuable 
consideration  from  the  claim  of  dower,  though  such  purchaser 
had  notice  of  the  marriage  at  the  time  of  his  purchase. 

40.  Lady  Radnor's  husband  was  seised  in  tail  of  the  lands  in 
question.  But  there  was  a  term  of  ninety-nine  years  prior  to  his 
estate,  which  was  created  for  the  performance  of  several  trusts 
in  the  Earl  of  Warwick's  will,  all  which  were  performed,  and 
after,  in  trust  to  attend  the  inheritance.  Lord  Radnor,  having 
barred  the  entail,  sold  the  estate  to  Vandebendy ;  and  assigned 
the  term  to  a  trustee  for  him.  After  the  death  of  Lord  Radnor, 
his  widow  recovered  dower,  with  a  cessat  executio  during  the 
term  ;  and  brought  her  bill  in  the  Court  of  Chancery,  to  have  the 
term  removed,  that  she  might  have  the  benefit  of  her.  judgment 
at  law.  Lord  C.  Jeffries  inclined  to  give  relief ;  but  Lord  Somers 
held,  that  this  being  against  a  purchaser,  equity  ought  not  to 
give  any  relief ;  and  dismissed  the  bill. 

On  an  appeal  to  the  House  of  Lords,  it  was  argued  for  Lady 
Radnor,  that  equity  did  entitle  her  to  the  third  of  this  term  ;  that 
a  tenant  by  the  curtesy  would  be  entitled  to  it,  and  by  the  same 

(a)  Saunders  v.  Dehew,  2  Vern.  271.  (b)  Vide  tit.  15.  c.  5.  (c)  Tit.  32.  c  27. 


418  Title  XII.     Trust.     Ch.  III.  s.  40—42. 

reason  a  tenant  in  dower ;  that  the  term  was  to  attend  all  the 
estates  created  by  Lord  Warwick's  will,  and  in  trust  for 
430  *  such  *  persons  as  should  claim  under  it,  which  the  appel- 
lant did,  as  well  as  the  respondent ;  that  the  purchaser 
had  notice  of  the  incumbrance  of  dower,  the  vendor  being  mar- 
ried when  he  sold  the  estate ;  and  that  Lady  Radnor  claimed 
under  her  husband,  who  had  the  benefit  of  the  whole  trust. 

On  the  other  side  it  was  said,  that  dower  was  an  interest  or 
right  at  the  common  law  only  ;  that  no  title  could  be  maintained 
to  dower,  but  where  the  common  law  gave  it ;  and  if  a  term 
were  in  being,  no  woman  was  ever  let  in,  until  after  the  deter- 
mination of  that  term  ;  that  this  was  the  first  pretence  set  up 
for  dower  in  equity  ;  that  the  right  was  only  to  the  thirds  of  the 
rent  reserved  on  any  term  ;  that  it  had  always  been  the  opinion 
of  conveyancers,  that  a  term  or  statute  prevented  dower;  and 
that  the  consequence  of  an  alteration  would  be  much  more  dan- 
gerous than  the  continuance  of  the  old  rules.  The  decree  was 
affirmed,  (a) 

41.  The  doctrine  established  in  this  case  is  contrary  to  the 
general  principles  of  equity,  which  has  never  extended  its  pro- 
tection, in  any  other  instance,  to  purchasers  with  notice  of  in- 
cumbrances, at  the  time  of  their  purchase.  The  true  and  only 
reason  on  which  it  was  founded  was  the  silent  uniform  course  of 
practice,  uninterrupted,  but,  at  the  same  time,  unsupported,  by 
legal  decisions ;  an  opinion  having  been  generally  adopted  by 
the  conveyancers,  that  a  satisfied  term  would  protect  a  purchaser 
from  the  claim  of  dower ;  and  many  estates  having  been  pur- 
chased under  this  opinion.  It  is  now,  however,  fully  recognized 
and  confirmed  by  a  decree  of  Lord  Hardwicke,  of  whose  judg- 
ment on  the  case,  a  report  is  given  by  Mr.  Butler,  in  his  Notes 
on  the  First  Institute,  (b) 

42.  This  doctrine  has  been  fully  recognized,  in  a  modern  case, 
by  Sir  R.  P.  Arden,  M.  R.,  who  is  reported  to  have  said: — "It 
is  perfectly  established,  that  a  purchaser  for  a  valuable  consider- 
ation from  the  owner  of  the  equitable  interest,  may  protect  him- 
self, though  the  owner  could  not,  by  the  assignment  of  any 
outstanding  terms.  He  might,  therefore,  protect  himself  against 
any  demand  she  (the  widow)  might  have  of  dower  at  law.     The 

(a)  Radnor  v.  Vandebendy,  Show.  Pari.  Ca.  69. 

(b)  Swannock  v.  Lifford,  i  Inst,  208.  a.  n.  1.    Hill  v.  Adams,  2  Atk.  208,  S.  C. 


Title  XII.     Trust.     Ch.  III.  s.  42—46.  419 

decision  is  a  very  ancient  one,  and  was  affirmed  by  the  House  of 
Lords.  Therefore,  however  questionable  it  might  have  been,  it 
is  now  clear  that  a  purchaser,  or  a  mortgagee,  who  is  a  purchaser 
pro  tanto,  though  he  knows  of  the  right  of  dower,  may  advance 
his  money ;  and,  taking  in  a  term,  may  avail  himself  against  any 
demand  she  might  have  of  dower  at  law."  (a) 

43.  A  term  standing  out  in  a  trustee  to  attend  the  inheritance 
will  not,  however,  protect  a  purchaser  from  the  claim  of  dower, 
unless  it  is  actually  assigned  to  a  trustee  for  him.  (b) 

44.  R.  M.  being  seised  in  fee  of  certain  lands,  with  an  out- 
standing term  vested  in  a  trustee,  upon  an  express  trust  to  attend 
the  inheritance,  conveyed  the  estate  to  a  purchaser  for  a  valuable 
consideration  ;  but  no  assignment  of  the  term  was  made.  Upon 
the  death  of  R.  M.,  his  widow  claimed  dower  in  Chancery ;  the 
purchaser  contended  that  she  was  barred  by  the  term.  Sir  Wm. 
Grant,  sitting  for  the  Lord  Chancellor,  declared  his  opinion  to  be, 
that  without  an  assignment  to  a  trustee  for  the  purchaser,  the 
term  did  not  exclude  the  claim  to  dower.  And  upon  a  rehearing 
before  Lord  Eldon,  he  concurred  in  this  opinion,  (c) 

[In  the  case  of  Mole  v.  Smith,  stated  in  a  former  page,  the 
Court  of  Chancery  decreed  the  vendor's  widow,  who  claimed  to 
be  entitled  to  dower,  and  who  happened  to  be  the  administratrix 
of  the  trustee  of  the  term,  to  assign  the  term  to  a  trustee  for  the 
purchaser  to  the  exclusion  of  her  dower.]  (d) 

45.  The  doctrine  that  an  outstanding  term  of  years  will  protect 
a  purchaser  from  the  claim  of  dower  was  carried  still  farther ;  for 
it  was  determined  that  a  satisfied  term  should  protect  an  heir  at 
law  from  dower.  But  this  was  soon  after  overruled  ;  and  it  was 
resolved  that  an  outstanding  term  should  not  protect  an  heir  from 
dower.  {e)x 

46.  A  term  was  raised  in  Black  Acre,  in  trust  to  indemnify  a 
person  against  incumbrances  that  might  affect  White  Acre,  which 
he  had  purchased.  The  defendant,  Lady  Williams,  brought  a 
writ  of  dower  of  Black  Acre  against  the  plaintiff,  who  was  an 

(a)  Wynn  v.  Williams,  5  Vcs.  jun.  134. 

(&)  Tit.  6.  ch.  4.  s.  17.  (c)  Maundrcll  v.  Maundrell,  7  Ves.  567.     10  Ves.  246,  S.  C. 

{d)  1  Jac.  &  Wal.  665.     Tit.  6.  ch.  4.  s.  18.  (e)  Brown  v.  Gibbs,  2  P.  Wms.  707. 

1  The  reason  is,  that  the  heir  takes  only  the  seisin  of  the  ancestor,  which  was  already 
subject  to  dower ;  of  which  the  heir  had  notice,  and  so  comes  in  on  the  footing  of  a 
volunteer. 


420  Title  XII.     Trust.     Ch.  III.  s.  46—48. 

infant.  His  guardian  had  let  her  take  judgment  at  law,  without 
setting  up  the  term,  or  taking  any  notice  of  it.  So  the  bill  was 
brought  by  the  infant  heir,  to  be  relieved  against  the  judgment. 
It  was  said,  by  Lord  Keeper  Wright,  that  this  case  was  the  same 
with  Lady  Radnor's  ;  and  if  she  could  not  be  relieved  as  plaintiff, 
it  must  be  for  want  of  equity  ;  therefore,  the  plaintiff  must  be  re- 
lieved against  her,  when  she  was  defendant.  And  Lady  Radnor's 
case  having  been  affirmed  in  the  House  of  Lords,  the  authority 
was  so  great  that  it  could  not  be  got  over.  At  a  rehearing  of 
this  cause  before  Lord  Harcourt,  Lady  Williams'  counsel  insisted 
that  the  heir,  who  was  but  a  volunteer,  should  not,  in  equity,  be 
relieved  against  the  dowress ;  and  that  this  case  was  different 
from  that  of  Lady  Radnor,  in  regard  Vandebendy  was  a  purchaser. 
To  which  it  was  answered,  that  if  Lady  Williams  had  been 
plaintiff  in  the  original  bill  in  equity,  she  could  not  have  been 
relieved,  as  the  term  must  have  subsisted  for  the  benefit  of  the 
heir  at  law;  that  this  was  the  same  in  reason  with  Lady  Rad- 
nor's case  ;  that  the  term  was  prior  to  the  marriage,  and  so  the 
husband  only  seised  of  the  reversion  in  fee  during  the  coverture  ; 

that  as  to  Vandebendy's  being  a  purchaser,  he  was  so 
442*     with  full  notice  of  dower,  and  got  in  the  term  *to  protect 

himself  against  the  dowress ;  and,  therefore,  having  notice, 
was  to  be  considered  as  a  volunteer.  The  decree  was  reversed  ; 
and  it  was  ordered  that  the  plaintiff,  Lady  Williams,  having  re- 
covered dower  at  law,  the  trust  term  should  not  stand  in  her  way 
in  equity,  (a) 

47.  Lord  Harcourt's  doctrine  has  been  fully  assented  to  by 
Lord  Hardwicke,  who,  in  the  case  of  Swannock  v.  Lifford,  said : 
"  If  the  husband  dies,  and  there  is  a  satisfied  term  continuing, 
the  wife  would  be  entitled  to  come  into  this  court,  against  the 
heir,  to  set  that  term  out  of  the  way,  in  order  to  have  the  benefit 
of  her  dower."  (b) 

48.  In  a  case  in  Chancery,  10  Geo.  I.,  stated  by  Mr.  Viner, 
the  question  was,  whether  the  assignees  of  a  bankrupt,  by  taking 
an  assignment  of  a  mortgage  term,  prior  to  the  title  of  dower, 
should  protect  their  estate  from  dower.  It  was  insisted  that  the 
creditors  and  assignees  stood  only  in  the  place  of  the  bankrupt ; 
and  since  such  an  assignment  to  the  bankrupt  himself,  or  his 

(a)  Wray  r.  Williams,  Prec.  in  Cha.  151.    1  P.  Wins.  137,  S.  C.  (b)  Ante,  s.  41. 


Title  XII.     Trust.     Ch.  III.  s.  48—53.  421 

heir,  would  not  protect  the  estate  from  dower,  in  the  hands  of  the 
heir,  neither  should  it  protect  the  estate  in  the  hands  of  the 
creditors  of  the  bankrupt,  or  the  assignees  ;  that  this  differed 
the  case  from  that  of  Radnor  v.  Vandebendy,  where  it  was  held 
that  such  a  prior  term  should  protect  the  estate  from  dower,  in 
the  hands  of  a  purchaser.  It  was  decreed  that  the  widow  should 
be  let  into  her  dower,  (a) 

49.  It  has  been  stated,  that  the  Court  of  Chancery  will  set 
aside  a  term  for  years  in  favor  of  a  jointress.  A  tenant  by  the 
curtesy  is  also  entitled  to  the  aid  of  equity  against  a  trust  term, 
assigned  to  attend  the  inheritance,  and  set  up  against  him  by  the 
heir. 

50.  The  plaintiff,  as  tenant  by  the  curtesy,  brought  his  bill  to 
be  relieved  against  a  term  for  years,  that  was  assigned  in  trust  to 
attend  the  inheritance,  and  had  been  set  up  by  the  heir  at  law  in 
bar  to  his  title.  Decreed  that  the  term  should  not  be  made  use 
of  against  him  by  the  heir  at  law.  (b) 

51.  In  consequence  of  the  doctrine  stated  in  chap.  2,  s.  36,  if 
a  defendant  in  ejectment  can  show  that  there  is  an  outstanding 
term  for  years,  vested  in  a  third  person,  to  the  possession  of  which 

,the   plaintiff  is  not   entitled,  he    cannot  recover.     So   where    a 
defendant  can  show  that  there  is  an  outstanding  term,  of 
which  the  *  trusts  are  not  completely  satisfied ;  this  will     *  443 
also  operate  as  a  bar  to  the  plaintiff's  recovery. 

52.  Lord  Mansfield  held,  that  though  there  was  an  unsatisfied 
outstanding  term,  yet  if  the  plaintiff  admitted  the  charge  for 
which  the  term  was  created,  and  only  claimed  subject  to  such 
charge,  the  trustees  of  the  term  not  asserting  their  right,  he 
should  recover.  This  doctrine  was,  however,  rejected  by  Lord 
Kenyon,  who  held  that  a  satisfied  term  might  be  presumed  to 
have  been  surrendered ;  but  that  an  unsatisfied  term,  raised  for 
the  purpose  of  securing  an  annuity,  might  be  set  up,  during  the 
life  of  the  annuitant,  as  a  bar  to  a  plaintiff  in  ejectment,  even 
though  he  claim  subject  to  the  charge,  (c) 

53.  In  another  case,  Lord  Kenyon  directed  a  jury  to  presume, 
that  an  old  satisfied  term  was  surrendered;  saying,  that  he 
grounded  himself  upon  the  doctrine  laid  down  by  Lord.  Mans- 
field in  the  case  of  Lade  v.  Holford  ;  which  was  not,  as  had  been 

{a)  Squire  v.  Compton,  9  Vin.  Ab.  227.  (6)  Snell  v.  Clay,  2  Vern.  324. 

(c)  Doc  v.  Pegge,  1  Term  R.  768.  n.      Doe  v.  Staple,  2  Term  K.  684. 

vol.  i.  36 


422  Title  XII.     Trust.     Ch.  III.  s.  53—57. 

supposed,  that  an  ejectment  might  be  maintained  upon  a  mere 
equitable  title,  for  that  would  remove  ancient  landmarks  in  the 
law,  and  create  great  confusion;  but  that,  in  all  cases,  where 
trustees  ought  to  convey  to  the  beneficial  owner,  he  would  leave 
it  to  the  jury  to  presume,  where  such  presumption  might  be 
reasonably  made,  that  they  had  conveyed  accordingly ;  in  order  to 
prevent  a  just  title  from  being  defeated  by  a  matter  of  form,  (a) 

54.  In  a  subsequent  case,  he  said,  that  though,  under  certain 
circumstances,  a  jury  might  presume  a  satisfied  term  to  have 
been  surrendered ;  yet  if  no  such  presumption  was  made,  and  it 
appeared  in  a  special  verdict  in  ejectment  that  such  a  term  was 
still  outstanding  in  a  trustee,  who  was  not  joined  in  bringing  the 
ejectment,  the  cestui  que  trust  could  not  recover,  (b) 

55.  Where  an  old  mortgage  term  of  1000  years,  created  in 
1727,  was  recognized  in  a  marriage  settlement  of  the  owner  of 
the  inheritance  in  1751,  by  which  a  sum  of  money  was  appro- 
priated to  its  discharge ;  and  no  further  notice  of  it  was  had  till 
1802,  when  a  deed,  to  which  the  then  owner  of  the  inheritance 
and  the  representatives  of  the  termors  were  parties,  reciting  that 
the  term  was  still  subsisting,  conveyed  it  to  others,  to  secure  a 
mortgage ;  Mr.  Baron  Thompson,  at  the  trial,  and  the  Court  of 

K.  B.,  upon  a  motion  to  set  aside  the  verdict,  held  that  it 
444*     could  *not  be  presumed  to  have  been  surrendered  against 

the  owner  of  the  inheritance,  who  was  interested  in  up- 
holding it.  (c) 

56.  A  term  was  created  in  1711  for  raising  portions.  There 
was  no  evidence  of  the  payment  of  the  portions ;  but  a  settle- 
ment of  the  estate  took  place  in  1744  ;  and  it  contained  a  cove- 
nant that  the  estate  was  free  from  incumbrances.  It  did  not 
appear  that  an  assignment  of  the  term  had  ever  been  made.  On 
an  objection  to  the  title  by  a  purchaser,  Sir  John  Leach,  Vice- 
Chancellor,  held,  that  a  surrender  of  the  term  must  be  presumed ; 
and  that,  in  matters  of  presumption,  the  Court  will  bind  a  pur- 
chaser, where  it  would  give  a  clear  direction  to  a  jury  in  favor  of 
the  fact,  (d) 

57.  Terms  for  years,  though  assigned  to  a  trustee  for  the  ex- 

(a)  Doe  v.  Sybourne,  7  Term  E.  2.    Bull.  N.  P.  110.    Ante,  c.  2.  s.  38—40. 

(b)  Goodtitle  v.  Jones,  7  Term  R.  47.  (c)  Doe  v.  Scott,  11  East,  478. 

(cZ)  Emery  v.  Grocock,  6  Madd.  54.  Ex  parte  Hohnan,  24th  July,  1821,  MS.  Sugd.  Tend. 
428.    Ed.  VI. 


Title  XII.     Trust.     Ch.  III.  s.  57—58.  423 

press  purpose  of  attending  the  inheritance,  have,  in  two  modern 
cases,  been  presumed  to  be  surrendered.  And  in  the  last  of 
these  cases,  Lord  C.  J.  Abbott  said : — "  Where  a  term  for  years 
becomes  attendant  upon  the  reversion  and  inheritance,  either  by 
operation  of  law,  or  by  special  declaration,  upon  the  extinction 
of  the  objects  for  which  it  was  created,  the  enjoyment  of  the 
land  by  the  owner  of  the  reversion,  thus  become  the  cestui  que 
trust  of  the  term,  may  be  accounted  for  by  the  union  of  the  two 
characters  of  cestui  que  trust  and  inheritor,  and  without  sup- 
posing any  surrender  of  the  term  ;  and,  therefore,  in  general  such 
enjoyment,  though  it  may  be  of  very  long  continuance,  may  pos- 
sibly furnish  no  ground  to  presume  a  surrender  of  the  term. 
But  where  acts  are  done  or  omitted  by  the  owner  of  the  inheri- 
tance, and  persons  dealing  with  him  as  to  the  land,  which  ought 
not  reasonably  to  be  done  or  omitted,  if  the  term  existed  in  the 
hands  of  a  trustee,  and  if  there  do  not  appear  to  be  any  thing 
that  should  prevent  a  surrender  from  having  been  made  ;  in  such 
cases  the  things  done  or  omitted  may  most  reasonably  be  ac- 
counted for,  by  supposing  a  surrender  of  the  term ;  and,  there- 
fore, a  surrender  may  be  presumed."  (a)  f 

*58.  [In  Bartlett  v.  Downes,  a  lord  of  a  manor,  by  deed,  *445 
granted  the  stewardship  of  the  manor  for  the  life  of  the 
grantee.  Upon  the  death  of  the  grantor,  it  was  attempted  to  set 
up  a  satisfied  term  to  avoid  the  grant ;  and  in  order  to  support 
this  grant,  the  Court  of  K.  B.  decided  that  it  was  properly  left  to 
the  jury  to  presume  the  surrender.  The  term  was  created  in 
1712,  assigned  to  attend  in  1786,  and  in  1793  there  was  a  gen- 
eral declaration  as  to  all  outstanding  terms,  (b) 

(a)  Doe  v.  Wrighte,  2  Barn.  &  Aid.  710.     Doe  v.  Hilder,  Id.  782. 
(&)  3  Bar.  &  Cres.  616. 


[t  The  doctrine  of  the  Court  of  King's  Bench  has  since  been  very  much  the  subject 
of  consideration;  and  has  been  questioned  by  Lord  Eldon,  and  Richards,  L.  C.  B. 
See  Sugd.  on  Vend.  6th  ed.  p.  420,  el  seq—  The  Lord  Chancellor  observed  :  " It  is  not 
necessary  to  consider  much  the  doctrine  of  presumption  with  reference  to  the  present 
case ;  but  the  case  of  Doe  v.  Hilder,  having  been  alluded  to,  and  having  paid  consider- 
able attention  to  it,  I  have  no  hesitation  in  declaring  that  I  would  not  have  directed  a 
jury  to  presume  a  surrender  of  the  term  in  that  case  ;  and,  for  the  safety  of  the  titles  to 
the  landed  estates  in  this  country,  I  think  it  right  to  declare,  that  I  do  not  concur  in 
the  doctrine  laid  down  in  that  case."  Aspinall  v.  Kempson,  Sugd.  427.  Also  see 
Doe  v.  Plowman,  infra. 


424  Title  XII.     Trust.     Ch.  III.  s.  59—61. 

59.  But  in  Doe  v.  Cook,  the  Court  of  C.  B.  refused  to  presume 
the  surrender  of  a  term  in  favor  of  a  defendant  who  showed  no 
title  to  the  premises  sought  to  be  recovered.  The  term  was 
created  in  1793,  and  in  1794  was  assigned  to  secure  the  sum  of 
<£6000  ;  under  decrees  in  Chancery  in  1801  and  1802,  sales  had 
taken  place  in  other  parts  of  the  property  for  the  purpose  of 
paying  off  the  mortgage  debt ;  but  the  defendant  (who,  it  hap- 
pened, had  a  mere  naked  possession,)  did  not  produce  any  evi- 
dence of  further  proceedings  in  Chancery,  nor  of  his  own  title  to 
the  premises,  (a) 

60.  In  the  preceding  cases,  the  presumption  was  made  in  favor 
of  the  party  who  had  proved  a  right  to  the  beneficial  ownership, 
made  to  prevent  justice  being  defeated  by  a  mere  formal  objec- 
tion ;  and  the  Court  observed  in  Doe  v.  Cook,  (b)  that  no  case 
could  be  put  in  which  any  presumption  had  been  made,  except 
where  a  title  had  been  shown  by  the  party  who  called  for  the 
presumption,  good  in  substance,  but  wanting  some  collateral 
matter  necessary  to  make  it  complete  in  point  of  form.  In  such 
case,  where  the  possession  was  shown  to  have  been  consistent 
with  the  existence  of  the  fact  directed  to  be  presumed,  and  in 
such  cases  only,  had  it  ever  been  allowed. 

61.  The  subsequent  case  of  Townsend  v.  Champernown  (c) 
goes  a  step  further ;  there  the  question  arose  upon  an  exception  to 
the  Master's  report  in  favor  of  a  title.  A  term  of  1000  years  was 
recited  in  a  deed  dated  1758,  to  have  been  created  several  years 
preceding,  and  to  have  been  assigned  to  attend,  but  neither  the 
deed  creating  nor  that  assigning  the  term  were  produced ;  it 
was  urged  for  the  report  that  the  term  should  be  presumed  to  be 
surrendered,  on  the  authority  of  Doe  v.  Hilder ;  on  the  other 

hand,  the  propriety  of  the  decision  in  that  case  was  ques- 
446*     tioned.     *  Alexander,  L.  C.  B.,  in  overruling  the  objection, 

observed : — "  Until  a  different  decision  be  pronounced,  I 
shall,  on  the  authority  of  Doe  v.  Hilder,  after  the  expiration  of 
seventy  years,  without  payment  of  interest,  presume  the  term  to 
be  surrendered."  One  of  the  reasons  of  this  judgment  is  unin- 
telligible, and  even  admitting  the  propriety  of  the  decision  in 
Doe  v.  Hilder,  it  is  not  an  authority  for  the  introduction  of  the 
doctrine  of  presumption  under  the  circumstances  of  the  case  of 
Townsend  v.  Champernown.     In  the  former  case,  the  presump- 

(n)  6  Bing.  174.  (6)  6  Bing.  179.  (c)  1  Yo.  &  Jerv.  538. 


Title  XII.     Trust.     Ch.  III.  s.  61—62.  425 

tion  was  made  in  favor  of  a  creditor,  who  had  seised  the  land 
under  an  elegit,  taken  out  upon  a  judgment  obtained  against  the 
owner  of  the  inheritance  ;  while,  in  the  latter  case,  the  presump- 
tion was  called  for  by  the  vendor,  merely  to  save  himself  the 
expense  of  getting  in  an  outstanding  estate,  in  compliance  with 
the  usual  requisition  of  the  purchaser.  _ 

62.  In  the  later  case  of  Doe  v.  Plowman,  an  unsuccessful 
attempt  was  made  to  carry  the  doctrine  of  presuming  surrenders 
of  terms  still  farther ;  a  period  of  forty-two  years  only  having 
elapsed  since  the  term  was  assigned  to  attend.  In  that  case,  a 
term  of  1000  years  was  created  in  1772,  for  seeming  a  sum  of 
£5000 ;  the  mortgage  debt  was  paid  off  in  1787,  and  in  1789, 
the  residue  of  the  term  was  assigned  to  a  trustee  for  a  purchaser 
to  attend.  The  purchaser  continued  in  possession  of  the  estate 
until  her  death.  On  her  marriage  the  estate  was  settled,  and  by 
virtue  of  a  power  in  the  settlement,  she  devised  the  estate ;  but 
neither  the  settlement  nor  the  will  noticed  the  term.  One  of  the 
questions  reserved  was,  whether  a  surrender  of  the  term  was  to 
be  presumed.  The  cases  of  Doe  v.  Wrighte,  and  Doe  v.  Hilder, 
being  cited  as  in  point,  Lord  Tenterden,  C.  J.,  observed  that  the 
doctrine,  laid  down  in  those  cases,  had  been  much  questioned  ;  and 
upon  inquiring  whether  it  was  usual  to  notice  m  marriage  settle- 
ments such  a  term  as  the  one  in  question,  and  being  answered  in 
the  negative,  his  lordship  observed,  that  there  was  no  ground  for 
the  presumption,  and  the  Court  so  decided,  (a)  x 

(a)  2  Bar.  &  Adol.  573. 


1  The  doctrine  of  the  presumed  surrender  of  a  trust  term  is  so  clearly  expounded  in 
the  following  extracts,  that  the  student  will  require  no  apology  for  their  insertion. 

"  Few  suhjects,"  says  Mr.  Best,  "  have  given  rise  to  greater  difference  of  opinion 
than  that  of  the  presumption  of  the  surrender  of  their  terms  by  trustees  for  terms  of 
years.  In  Lord  Mansfield's  time,  the  Courts  seem  to  have  entertained  notions  on  this 
subject,  which,  if  carried  out  in  practice,  would  have  gone  far  to  subvert  the  trial  by 
jury  on  the  one  hand,  and  confound  all  distinction  between  legal  and  equitable  jurisdic- 
tion on  the  other.  See  3  Sugd.  Vend.  &  Pur.  39,  40,  42,  10th  ed. ;  Evans  v.  Bicknell, 
6  Ves.  184;  Lessee  L.  Massey  v.  Touchstone,  1  Sch.  &  L.  67,  n.  (c) ;  Wallwyn  v.  Lee, 
9  Ves.  31 ;  Doe  d.  Hodsden  v.  Staple,  2  T.  R.  696  ;  Doe  d.  Bristow  v.  Pegge,  1  T.  P. 
758,  n.  In  the  case  of  Lade  v.  Holford,  Bull.  N.  P.  110,  Lord  Mansfield  said  that 
1  he  and  many  of  the  other  Judges  had  resolved  never  to  suffer  a  plaintiff  in  ejectment  to 
he  nonsuited  by  a  term,  standing  out  in  his  own  trustees,  or  a  satisfied  term  to  be  set  up  by  a 
mortgagor  against  a  mortgagee,  but  that  they  would  direct  the  jury  to  presume  it  surrendered.' 
There  is  no  objection  to  the  latter  branch  of  this  proposition,  which  seems  generally 
recognized  in  practice  ;  for,  by  not  assigning  the  term  for  the  benefit  of  the  mortgagee, 

36* 


426  Title  XII.     Trust     Ch.  III.  s.  62. 

and  afterwards  setting  it  up  against  him,  the  mortgagor  would  be  guilty  of  a  gross 
fraud,  so  that  the  presumption  of  the  surrender  of  the  term  is  really  an  application  of 
the  legal  maxim  which  presumes  against  fraud  and  covin ; — 3  Sugd.  Vend.  &  Pur. 
42,  10th  ed.  See  per  Lord  Tenterden,  C.  J.,  in  Doe  d.  Putland  v.  Hilder,  2  B.  &  A. 
790  ; — and  it  has  accordingly  been  held  that  such  a  presumption  will  not  be  made  in 
favor  of  a  prior  mortgagee  against  a  subsequent  mortgagee  in  possession  of  the  title 
deeds,  without  notice  of  the  prior  incumbrance.  Goodtitle  d.  Norris  v.  Morgan,  1 
T.  R.  755  ;  Evans  v.  Bicknell,  6  Ves.  jun.  184.  But  the  general  proposition,  never  to 
suffer  a  plaintiff  to  be  nonsuited  by  a  term  outstanding  in  his  trustees,  is,  at  least,  if 
taken  in  its  literal  sense,  inconsistent  with  principle,  and  at  variance  with  subsequent 
authority.  The  surrender  of  a  term  is  a  question  of  fact,  and  the  Court  has  not  only 
no  right,  but  it  would  be  most  dangerous,  to  advise  a  jury  to  presume  such  a 
surrender,  when  all  the  evidence  clearly  indicated  the  reverse.  In  Doe  d.  Reede 
v.  Reede,  8  T.  R.  122,  Lord  Kenyon  said :  '  I  agree  with  what  was  said  in  Lade  v.  Hol- 
ford,  that,  where  the  beneficial  occupation  of  an  estate  by  the  possessor  has  given 
reason  to  suppose,  that,  possibly,  there  may  have  been  a  conveyance  of  the  legal  estate 
to  the  person  who  is  equitably  entitled  to  it,  a  jury  may  be  advised  to  presume  a  con- 
veyance of  the  legal  estate  ;  but  if  it  appear  in  a  special  verdict,  or  a  special  case,  that 
the  legal  estate  is  outstanding  in  another  person,  the  party  not  clothed  with  the  legal 
estate,  cannot  recover  in  a  court  of  law;  and,  in  this  respect,  I  cannot  distinguish 
between  the  case  of  an  ejectment  brought  by  a  trustee  against  his  cestui  que  trust, 
and  an  ejectment  brought  by  any  other  person.'  And  the  same  learned  Judge,  in  Doe  d. 
Bowerman  v.  Sybourn,  7  T.  R.  3,  (see  to  the  same  effect,  Goodtitle  d.  Jones  v.  Jones, 
7  T.  R.  43 ;  Doe  d.  Hodsden  v.  Staple,  2  T.  R.  684 ;  and  Doe  d.  Shewen  r.  Wroot,  5 
East,  132,)  said,  that  '  the  doctrine  laid  down  by  Lord  Mansfield  in  Lade  v.  Holford,  was 
not,  as  had  been  supposed,  that  an  ejectment  might  be  maintained  upon  a  mere  equit- 
able title,  which  would  remove  ancient  landmarks  in  the  law,  and  create  great  confu- 
sion ;  but  that,  in  all  cases  where  trustees  ought  to  convey  to  the  beneficial  owner,  he 
Avould  leave  it  to  the  jury  to  presume,  when  such  presumption  might  reasonably  be 
made,  that  they  had  conveyed  accordingly,  in  order  to  prevent  a  just  title  from  being 
defeated  by  a  matter  of  form.' 

"  The  surrender  of  a  term,  like  any  other  fact,  may  be  inferred  from  circumstances. 
3  Stark.  Ev.  926,  n.  (m),  3d  ed. ;  White  v.  Foljambe,  11  Ves.  351  ;  Doe  d.  Brune  v. 
Martyn,  8  B.  &  C.  513.  Thus,  in  the  case  of  Bartlett  v.  Downes,  3  B.  &  C.  616,  which 
was  an  action  for  fees,  brought  by  a  party  claiming  to  be  steward  of  a  manor,  under 
an  appointment  made  to  him  by  the  owner  of  the  inheritance,  against  the  defendant, 
who  claimed  under  a  devisee  of  that  party,  it  was  held  that  it  was  properly  left  to  the 
jury  to  say  whether  they  thought  an  old  term  outstanding  or  not ;  it  appearing  by  the 
evidence,  that  the  party  under  whom  the  defendant  claimed,  had  admitted  by  letter, 
the  right  of  the  testatrix  to  appoint  to  the  office,  the  grant  of  which  also  would  have 
been  void,  supposing  the  term  outstanding.  It  is.  however,  said  by  Lord  Eldon,  in  the 
case  of  Evans  v.  Bicknell,  6  Ves.  jun.  185,  that  the  fact  of  a  term  having  been  satisfied, 
is  not,  when  standing  alone,  sufficient  to  raise  the  presumption  of  a  surrender,  but  that 
there  must  be  some  dealing  with  the  term.  And  in  Williams  v.  Day,  2  C.  &  J.  460, 
(see  also  Doe  d.  Hodsden  v.  Staple,  2  T.  R.  684,)  which  was  an  action  by  a  reversioner 
for  undermining  a  dwelling-house,  where  the  defendant,  in  order  to  disprove  the  plain- 
tiff's title,  proved  a  lease  for  lives  to  the  plaintiff,  and  the  creation  of  a  term  by  will 
eighteen  years  previous,  by#which  the  premises  were  devised  to  trustees  in  trust  to  pay 
annuities,  and  for  other  purposes,  with  remainder  to  the  lessor,  it  was  held  by  the  Court 
of  Exchequer  that  the  Judge  at  Nisi  Prius  had  rightly  told  the  jury  that  they  could  not 
presume  a  surrender  of  the  term 


Title  XII.     Trust.     Ch.  III.  s.  62.  427 

"  Where  acts  arc  done  or  omitted  by  the  owner  of  the  inheritance,  and  persons 
dealin"-  with  him  as  to  the  land,  which  ought  not  reasonably  to  be  done  or  omitted, 
if  the  term  existed  in  the  hands  of  a  trustee,  and  if  there  do  not  appear  to  be  any  thing 
that  should  prevent  a  surrender  from  having  been  made,  a  surrender  of  the  term  may 
be  presumed.     1  Phill.  &  Am.  Ev.  477  ;  Doe  d.  Putland  v.  Hilder,  2  B.  &  A.  791,  792. 
Applications  were,  however,  made  of  this  principle,  in  the  cases  of  Doe  d.  Burdctt  v. 
Wriehte  2  B.  &  A.  710  ;  and  Doe  d.  Putland  v.  Hilder,  Id.  7S2,  which  have  occasioned 
as  much  discussion  as  almost  any  question  to  be  found  in  the  reports  ;  namely,  whether 
the  surrender  of  a  term  of  years  assigned  to  attend  the  inheritance  is,  as  among  pur- 
chasers or  incumbrancers,  to  be  presumed  to  have  been  surrendered,  on  the  ground  of  its 
having  remained  for  a  series  of  years  unnoticed  in  marriage  settlements,  and  other 
family  documents.     The  negative  of  this  proposition  has  been  so  ably  advocated  by 
Sir  E.  Sugden,  in  his  work  on  Vendors  and  Purchasers,  3  Sugd.  Vend.  &  Pur.  ch.  15, 
s.  3,  10th  ed.,  as  to  leave  us  little  else  to  do  than  lay  before  our  readers  a  summary  of 
his  arguments,  after  which  we  will  state  the  cases  the  other  way,  together  with  those 
■which  have  been  subsequently  decided.     '  It  is,'  he  observes,  the  settled  law  of  Courts 
of  Equity,  that,  if  a  man  buys  an  estate  fairly,  he  may  get  in  a  term  of  years  or  other 
incumbrance,  although  it  be  satisfied,  and  thereby  defend  his  title  at  law  against  any 
mesne  incumbrance  of  which  he  had  no  notice.' — The  protection  afforded  against  mesne 
incumbrances,  by  the  assignment  of  attendant  terms  of  years,  rests  on  the  maxim  of 
equity,  that,  where  there  is  equal  equity,  the  law  shall  prevail.     '  Suppose,'  says  Mr. 
Butler,  in  his  note  to  Co.  Litt.  290,  b.  n.  (1),  p.  15,  '  A  purchases  an  estate  which,  pre- 
vious to  his  purchase,  has  been  sold,  mortgaged,  leased,  and  charged  with  every  kind  of 
incumbrance  to  which  real  property  is  subject ;  in  this  case,  A  and  the  other  purchasers, 
and  all  the  incumbrancers,  have  equal  claims  upon  the  estate.     This  is  the  meaning  of 
the  expression,  that  their  equity  is  equal.    Bat  if  there  is  a  term  of  years  subsisting  in 
the  estate,  which  was  created  prior  to  the   purchases,  mortgages,  or  other  incum- 
brances, and  A,  (without  fraud  or  notice  of  the  purchases,  &c.,)  procures  an  assignment 
of  it  in  trust  for  himself,  this  gives  him  the  legal  estate  in  the  lands  during  the  continuance 
of  the  term,  absolutely  discharged  from,  and  unaffected  by,  any  of  the  purchases,  mort- 
gages, and  other,  incumbrances  subsequent  to  the  creation  of  the  term,  but  prior  to  his 
purchase.    This  is  the  meaning  of  the  expression  in  assignments  of  terms,  that  they  are 
to  protect  the  purchaser  from   all  mesne  incumbrances.'     It  may  be  made  a  question, 
whether,  and  to  what  extent,  the  legal  rights  of  trustees  are  barred  or  affected  by  the 
new  Statute  of  Limitations,  3  &  4  Will.  4,  c.  27,  s.  2  and  6.     The  author  is  not  aware 
of  any  judicial  decision  on  this  point,  which  is  one  of  great  importance,  affecting  most 
materially  the  advantages  resulting  from  terms  assigned  to  attend  the  inheritance.    At 
law,  every  term  is  a  term  in  gross.     The  owner  of  the  fee  is  tenant  at  will  to  his  own 
trustee.     Freeman  v.  Barnes,  1  Ventr.  80  ;  Dighton  v.  Grecnvil,  2  Ventr.  329.     The 
term  is  anxiously  assigned  to  attend  the  inheritance ;  it  does  accordingly  attend  the 
inheritance,  and  the  performance  of  the  very  service  for  which  it  was  created  never  can 
be  a  ground  for  defeating  its  legal  operation.    Upon  principle,  therefore,  a  term  of  years 
assigned  to  attend  the  inheritance  ought  not  to  be  presumed  to  be  surrendered,  unless 
there  has  been  an  enjoyment  inconsistent  with  the  existence  of  the  term,  or  some  other  act 
done  in  order  to  disavow  the  tenure  under  the  termor,  and  to  bar  it  as  a  continuing  interest. 
The  universal  practice,  not  to  require  the  assignment  of  attending  terms  on  descents  or 
settlements,  proves  unequivocally  the  opinion  of  the  profession,  that  the  possession  of 
the  heir,  and  of  the  person  claiming  under  the  settlement,  is  in  law  the  possession  of  the 
trustees  of  the  term.    Docs  then  a  subsequent  purchase,  without  the  purchaser's  taking 
an  assignment  of  the  term,  let  in  the  presumption  of  the  surrender  of  the  term  ?     The 
term  was  assigned  to  attend  the  inheritance,  and  in  trust  for  the  party,  his  heirs  and 


428  Title  XII.     Trust.     Ch.  III.  s.  62. 

assigns.  If  the  possession  of  the  heir  and  his  family  under  the  settlement  was  not  ad- 
verse to  the  title  of  the  termor,  how  can  the  title  of  the  purchaser  be  so  ?  The  event — 
if  the  event  is  to  be  looked  at  on  which  this  question  hinges — shows  that  he  required 
the  protection  of  the  term  more  than  any  of  the  former  owners ;  and  if  his  acts  are  to 
be  adverted  to,  we  shall  find  him  anxiously  obtaining  a  further  assignment  of  the  term. 
TJiere  is  a  continued  enjoyment  under  the  original  trusts,  which  embraces  all  the  persons 
who  have  successively  enjoyed  the  estate.  Does,  then,  the  appearance  of  the  adverse 
claimant  weaken  the  [purchaser's  case  1  So  far  from  it,  that,  in  the  great  majority  of 
the  cases  in  the  books,  the  protection  was  not  sought  for  until  the  necessity  for  it 
appeared.  These  cases  show  the  rules  of  equity  which  flow  from  the  anxiety  of  the 
Courts  to  strengthen  the  title,  and  protect  the  possession  of  purchasers ;  but  if  at 
law  the  outstanding  term  is  to  be  presumed  to  be  surrendered,  they  will  no  longer 
afford  any  protection  to  purchasers.  The  doctrine,  that  the  mortgagor  shall  not 
set  up  an  attendant  term  against  the  mortgagee,  does  not  warrant  the  presumption 
of  a  surrender  in  this  case.  In  the  former  case,  there  are  only  the  rights  of  the 
mortgagor  and  mortgagee  still  in  question,  and  the  presumption  is  made  in  favor  of 
the  mortgagee ;  the  claim  of  a  third  party  does  not  intervene.  But  does  it  follow 
that  a  surrender  should  be  presumed,  not  as  between  mortgagor  and  mortgagee,  but 
as  between  two  innocent  mortgagees,  both  claiming  under  the  same  mortgagor, 
where  one,  after  the  execution  of  both  mortgages,  has  obtained  an  assignment  of 
the  term  ?  The  objection  is,  not  that  a  surrender  cannot  be  presumed  against  an 
owner  of  the  inheritance,  but  that  the  presumption  ought  not  to  be  made  against  a 
purchaser  of  the  inheritance,  where  the  contest  is  between  him  and  incumbrancers 
claiming  under  the  seller,  but  of  whose  claims  he  had  no  notice.  The  rule,  that, 
where  trustees  ought  to  convey  to  the  beneficial  ownei-,  a  jury  may  presume  such  a 
conveyance,  in  order  to  prevent  a  just  title  from  being  defeated  by  mere  matter  of 
form,  is  not  denied  to  be  a  wise  one,  but  it  does  not  apply  to  the  case  under  dis- 
cussion;  for,  in  this  case,  the  trustees  ought  not  to  surrender  the  term.  To  do  so, 
would  be  to  commit  a  breach  of  trust ;  and  the  presumption,  if  it  is  made,  has  not 
the  merit  of  preventing  a  just  title  from  being  defeated  by  a  mere  matter  of  form, 
but  lets  in  one  title  to  the  destruction  of  another,  where  the  equities  are  at  least  equal."1 
The  author  then  cites  the  following  cases  in  confirmation  of  the  position  for  which 
he  is  contending:  —  "VVilloughby  v.  Willoughby,  1  T.  E.  772;  Goodtitle  d.  Norris  v. 
Morgan,  1  T.  R.  755;  Doe  d.  Hodsden  v.  Staple,  2  T.  R.  684;  Keene  d.  Byron  v. 
Deardon,  8  East,  248;  Doe  d.  Graham  v.  Scott,  11  East,  478;  Evans  v.  Bicknell, 
6  Ves.  jan.  184,  185;  and  Maundrell  v.  Maundrell,  10  Vcs.  jun.  246.  See  Best  on 
Presumptions,  §  113,  114,  115. 

The  learned  author  then  cites  and  reviews  the  opposing  cases  of  Doe  v.  "Wrighte, 
2  B.  &  A.  710,  and  Doe  v.  Hilder,  Id.  782,  and  proceeds  to  observe  that  — "The 
principle  laid  down  in  these  cases  has  not  only  not  been  followed  in  practice,  but 
been  condemned  by  high  authority ;  by  Lord  Eldon,  in  the  Marquis  of  Townsend 
v.  The  Bishop  of  Norwich,  3  Sugd.  V.  &  P.  61 ;  Hayes  v.  Bailey,  Id.  62,  10th  ed. ; 
Cholmondeley  r.  Clinton.  Id.  63 ;  and  Aspinall  v.  Kempson,  Id.  65.  It  was  doubted 
by  Richards,  C.  B.,  and  Graham,  B.,  in  Doe  d.  Newman  v.  Putland,  Id.  59,  60,  61 ; 
and  it  should  seem,  also,  by  Sir  T.  Plumer,  in  Cholmondeley  v.  Clinton,  2  Jac.  & 
W.  158.  In  Aspinall  v.  Kempson,  in  particular,  Lord  Eldon,  in  speaking  of  the 
case  of  Doe  d.  Putland  v.  Hilder,  said,  '  I  have  no  hesitation  in  declaring  that  I 
would  not  have  directed  a  jury  to  presume  a  surrender  of  the  term  in  that  case; 
and,  for  the  safety  of  the  titles  to  the  landed  estates  in  this  country,  I  think  it 
right  to  declare,  that  I  do  not  concur  in  the  doctrine  laid  down  in  that  case.' 
Subsequent  to  all  these  occurred  the  case  of  Doe  d.  Blacknell  v.  Plowman,  2  B. 


Title  XII.     Trust.     Ch.  III.  s.  62.  429 

&  Ad.  573,  which  was  an  ejectment  tried  before  Bayley,  J.,  in  which  a  verdict 
was  returned  for  the  plaintiff,  subject  to  a  special  case,  which  stated  the  follow- 
ing circumstances:  —  In  January,  1787,  the  residue  of  a  satisfied  term,  created  in 
1772  was  assigned  to  trustees  to  attend  the  inheritance.  The  inheritance  was  pur- 
chased in  1789  by  Susannah  Blacknell,  and  the  term  assigned  to  trustees  in  trust 
for  her,  her  heirs  and  assigns,  and  in  the  mean  time  to  attend  the  inheritance. 
Susannah  Blacknell  entered  into  possession,  and  continued  so  until  her  decease,  in 
1816.  The  present  ejectment  having  been  brought  by  the  lessor  of  the  plaintiff  as 
heir  at  law  to  Susannah  Blacknell,  the  defendant  set  up  the  term,  and  the  question 
was,  ought  a  surrender  of  it  to  be  presumed  from  the  circumstance  that  it  was  un- 
noticed both  in  a  marriage  settlement  entered  into  by  Susannah  Blacknell,  in  1808, 
in  which  the  property  in  question  was  settled  to  various  uses,  and  in  her  will,  dated 
in  December,  1813?  This  case  having  come  on  to  be  argued  before  the  Court  in 
banc,  it  was  contended,  on  the  part  of  the  lessor  of  the  plaintiff,  that,  the  term 
being  so  old,  and  the  purposes  for  which  it  was  created  having  been  answered,  and 
it  not  having  been  mentioned  either  in  the  marriage  settlement  or  will  of  Susannah 
Blacknell,  a  surrender  ought  to  be  presumed.  On  Doe  v.  "VVrighte  and  Doe  v. 
Hilder  being  cited  as  authorities  in  point,  Lord  Tenterden,  (who,  it  will  be  remem- 
bered, delivered  the  judgment  in  Doe  v.  Hilder.)  observed,  —  'The  doctrine  laid 
down  in  those  cases,  I  believe,  has  been  much  questioned.  Is  such  a  term  as  this 
usually  noticed  in  a  marriage  settlement  ? '  And  on  receiving  an  answer  in  the  nega- 
tive, his  lordship  said,  —  'If  that  be  so,  there  is  no  ground  for  presuming  that  this 
term,  which  was  assigned  to  attend  the  inheritance,  was  ever  surrendered.'  Parke, 
Littledale,  and  Taunton,  JJ.,  concurring,  judgment  was  given  accordingly  for  the 
defendant. 

'■  It  is  to  be  observed,  that,  in  the  case  of  Doe  v.  Plowman,  the  term  was  allowed 
to  defeat,  not  a  purchaser,  but  the  heir  at  law,  for  whose  benefit  it  was  vested  in 
the  trustees.  '  Since  the  decision  in  Doe  v.  Hilder,'  continues  Sir  Edward  Sugden, 
'  the  point  has  been  repeatedly  debated  before  the  different  Masters  in  Chancery, 
upon  objections  taken  by  sellers  to  procure  representations  to  terms  of  years  which, 
they  insisted,  ought  to  be  presumed  to  have  been  surrendered;  but  the  general  and 
prevailing  opinion  has  been,  that  the  doctrine  cannot  be  maintained,  and  the  Masters 
have  acted  on  that  principle.  TVe  may,  therefore,  be  justified  in  considering  the  law 
to  stand  as  it  did  before  the  decision  in  Doe  v.  Hilder  ;  and  conveyancers  of  course  will 
follow  the  advice  of  Lord  Eldon,  in  the  case  of  the  Marquis  of  Townsend  v.  Bishop 
of  Norwich,  already  cited,  and  not  depart  from  the  practice  which  they  have  hitherto 
followed.'     Sugd.  V.  &  P.  64,  65,  10th  ed. 

"  It  seems,  however,  that  in  equity  a  term  which  has  not  been  assigned  to  attend 
the  inheritance,  and  which  has  not  been  disturbed  for  a  long  time,  will  be  presumed 
to  be  surrendered,  on  a  question  of  specific  performance  between  seller  and  purchaser. 
Id.  66,  citing  Emery  v.  Grocock,  Madd.  &  G.  54,  and  Ex  parte  Holman,  MS.  24, 
July,  1821. 

"  Whether,  in  cases  of  this  nature,  the  jury  arc  bound  to  believe  in  the  fact  which 
they  profess  to  find,  has  been  made  a  question ;  and  there  certainly  are  authorities 
both  ways.  Mr.  Starkie  thus  expresses  himself  on  the  point :  —  '  These  presump- 
tions are  the  mere  artificial  creatures  of  law,  depending  entirely  on  considerations 
of  legal  policy  and  convenience ;  they  are  pare  legal  rules ;  the  jury  being,  for  this 
purpose,  mere  passive  instruments  in  the  hands  of  the  Court.'  3  Stark.  Ev.  918, 
3d  ed.  It  is  hardly  correct  to  say  that  these  presumptions  are 'pure  legal  rules;' 
they  are  of  a  mixed  nature,  resting  partly  on  their  intrinsic  probability,  and  partly 
on  legal  expediency ;  and,  indeed,  the  same  author,  in  another  place,  says,  — '  The 


430  Title  XII.     Trust     Ch.  III.  s.  62. 

very  mention  of  the  proposition  is  absurd,  that  a  jury,  who  are  bound  by  their 
oath  to  pronounce  according  to  the  evidence,  should  decide  contrary  to  their  solemn 
conviction,  on  any  collateral  suggestion  of  convenience ;  as,  for  instance,  because 
a  purchaser  is  a  favorite,  either  in  a  court  of  law  or  equity.'  Id.  926,  n.  (m).  It 
is  beyond  all  question  that  the  practice  of  advising  juries  to  make  artificial  pre- 
sumptions has  been  carried  too  far.  See  supra,  part  1,  chap.  3,  art.  39  ;  Doe  d. 
Fenwick  v.  Ecad,  5  B.  &  A.  232 ;  and  Day  v.  Williams,  2  C.  &  J.  460.  Indeed, 
Bichards,  C.  B.,  is  reported  to  have  said,  that  he  never  desired  a  jury  to  pre- 
sume when  he  did  not  believe  himself; — Doe  d.  Newman  v.  Putland,  3  Sugd. 
V.  &  P.  61:  —  and  a  similar  opinion  has  been  expressed  in  another  case,  by 
Bayley,  B.,  Day  v.  Williams,  2  C.  &  J.  461.  This  is  going  a  great  way  ;  the  learned 
Judges  might  fairly  be  asked,  whether  they  would  think  it  necessary  to  believe  in  the 
surrender  of  a  satisfied  term,  set  up  by  a  mortgagor  against  nis  mortgagee,  before  they 
would  advise  a  jury  to  presume  it  surrendered.  Upon  the  whole,  it  may,  perhaps,  be 
safely  laid  down,  that  as  in  all  presumptions  of  this  nature,  legal  considerations  more  or 
less  predominate,  the  jury  ought  to  find  as  advised  by  the  Judge,  unless  the  fact  appear 
absurd  or  grossly  improbable,  in  which  case,  as  he  ought  not  to  advise  them  to  find,  so 
neither  ought  they  to  find  it."    Best  on  Presumptions,  §  119 — 122. 

The  subject  is  copiously  treated  by  Mr.  Coventry,  in  his  note  to  2  Powell  on  Mortg. 
p.  491,  a,  to  p.  510,  Band's  ed.  See  also  Dutch,  &c.  v.  Mott,  7  Paige,  77  ;  Matthews 
v.  Ward,  10  G.  &  J.  443. 


431 


CHAP.  IV. 

ESTATE   AND   DUTY   OF   TRUSTEES. 

Sect.     1.  Estate  of  Trustees.  Sect.  40.  Bound  to  reimburse  the  Ces- 

!>.  Duty  of  Trustees.  tui  que  trust. 

9.  Their 'Acts  not  prejudicial  to  AS.  Have     no    Allowance     for 

Trust.  Trouble. 

10.  Exception—  Conveyance  with-  46.  But   allowed  all    Costs   and 

out  Notice.  Expenses. 

15.  Where  Purchasers  are  bound,  50.  Trustees  seldom  permitted  to 

to  see  Trusts  performed.     \  purchase  the  Trust  Estate. 

22.   Where  they  are  not  bound.  61.  Refusing  to  act,  must  release 

30.  Where   the  Receipts   of  the  \  or  disclaim. 

Trustees  are  sufficient.  62.  Discharged,  and   others  ap- 

37.  Trustees  have  equal  Power.    '  pointed. 
39.  Can  derive  no  Benefit  from 
the  Trust.                            I 

Section  1.  Trust  estates  having  been  at  first  considered  as 
similar  to  uses  before  the  Stat.  27  Hen.  VIII.,  trustees  were  con- 
sequently held  to  be  in  the  same  situation  as  the  ancient  feoffees 
to  uses.  But  this  was  soon  altered ;  and  the  Court  of  Chancery, 
in  the  exercise  of  their  jurisdiction  over  trusts,  has  avoided  the 
inconveniences  that  arose  from  leaving  the  legal  estate  in  the 
feoffees  to  uses. 

2.  One  of  the  principal  of  these  was,  that  the  estates  of  the 
feoffees  to  uses  became  subject  to  all  their  legal  incumbrances. 
But  upon  the  establishment  of  trusts  it  became  settled,  that 
trustees  only  held  the  legal  estate  for  the  benefit  of  the  cestui 
que  trust ;  and  that  the  legal  estate  was  not  subject  to  any  of  the 
incumbrances  of  the  trustees;  to  their  specialty  or  judgment 
debts ;  to  the  dower  of  their  widows,  or  ihe  curtesy  of  their 
husbands,  (a) 

3.  Where  a  trustee  is  attainted  of  felon?/,  the  legal  estate  is 
forfeited:    but  the  cestui  que  trust  is  entitled   to  relief  in 
equity.     *  In  the  case  of  attainder  for  high  treason,  it  does     *  448 

(a)  1  P.  Wms.  278.    2  P.  Wms.  318.    Noel  v.  Jevon,  2  Freem.  43, 


432  Title  XII.     Trust.    Ch.  IV.  s.  3—5. 

not  appear  to  have  been  settled  whether  the  cestui  que  trust 
has  any  remedy  against  the  crown.  [But  the  better  opinion  seems 
to  be  that  he  has:  the  cestui  que  trust  forfeits  the  estate  for 
treason,  and  it  would  not  be  consonant  with  justice  that  the 
trustee  should  forfeit  it  for  the  same  offence ;  and  as  Baron 
Atkyns  argued  in  Pawlet  v.  Attorney- General,  it  would  derogate 
from  the  king's  honor,  that  what  is  equity  against  a  common 
person,  should  not  be  equity  against  him.]  (a) 

4.  Where  a  trustee  dies  without  heirs,  by  which  the  lands 
escheat,  either  to  the  crown  or  to  a  subject,  it  .  seems  to  be 
doubtful  whether  the  lord  by  escheat  holds  the  lands  discharged 
of  the  trust  or  not ;  the  authorities,  however,  appear  to  prepon- 
derate in  support  of  the  proposition  that  the  lord  holds  the  lands 
discharged,  (b)  1 

5.  With  respect  to  the  duty  of  trustees,  it  is  still  held,  in  con- 
formity to  the  old  law  of  uses,  that  pernancy  of  the  profits, 
execution  of  estates,  and  defence  of  the  land,  are  the  three  great 
properties  of  trust.2     So  that  the  Court  of  Chancery  will  com- 

(a)  Carter's  R.  67.  Pawlet  v.  Att'y-Gen.,  Hard.  465.  See  also  the  arguments  in  Burgess 
v.  Wheate,  1  W.  Bl.  ICO.     Tit.  30. 

(b)  Hard.  461.     Lane,  39,  54.     Tit.  30. 

1  In  Maryland,  it  has  been  held  that  equitable  as  well  as  legal  estates  are  liable  to 
escheat ;  and;  that  upon  the  escheat  of  the  trustee's  estate,  the  State  or  its  assignee 
bears  the  same  relation  to  the  cestui  que  trust  that  the  trustee  did.  Matthews  v.  Ward, 
10  G.  &  J.  443.  In  some  of  the  United  States,  it  is  provided  by  statute  that  all 
escheated  lands,  when  held  by  the  State,  shall  be  subject  to  the  original  trusts,  as  before 
the  escheat.  New  York,  Rev.  Stat.  Vol.  I.  p.  718,  §  2,  2d  cd.  In  others,  the  same 
liability  would  seem  to  result  by  fair  implication,  from  their  statutes  respecting  escheats. 
See  Massachusetts,  Eev.  Stat.  ch.  108,  §  8,  9  ;  Arkansas,  Rev.  St.  1837,  ch.  57, §  10—13, 
23,  p.  363,  364  ;  Connecticut,  Rev.  St.  1838,  tit.  30 ;  Mississippi,  How.  and  Hutch.  Dig. 
ch.  34,  §  79—84;  Missouri,  Rev.  St.  1845,  ch.  58,  §  12,  13,  23—26,  p.  463,  465;  Illinois, 
Rev.  St.  1839,  p.  280,  281,  §  2,  6 ;  Delaware,  Rev.  St.  1829,  tit.  Escheats,  p.  200,  §  5  ; 
Kentucky,  Rev.  St.  1834,  tit.  73,  §  5,  Vol.  I.  p.  621.  In  most  of  the  statutes  of  Escheats, 
there  is  an  express  saving  of  the  claims  of  aliens ;  and  it  is  hardly  to  be  supposed  that 
the  legislature  intended  to  place  these  claims  on  a  better  foundation  than  the  title  of  a 
native  cestui  que  trust.  And  on  the  whole,  it  is  conceived  that  no  State  in  the  Union 
would  now  hold  escheated  lands  discharged  of  the  trust.     See  4  Kent,  425,  426  :  1  Lo- 

max,  Dig.  611.  * 

In  England,  by  the  Statute  of  4  and  5  Will.  4,  ch.  23,  whenever  the  estate  of 
the  trustee  escheats,  the  property  is  now  made  subject  to  the  control  of  Chancery, 
for  the  benefit  of  the  cestui  que  trust.    And  see  Lowe's   estate  (In  re)  36  Leg.  Obs. 

389. 
2  The  words  in  a  will,  "  in  trust  in  the  first  place,"   arc  merely  words   of  order  and 

method,  and  do  not  necessarily  import  priority  of  duty  or  obligation.    Nash  v.  Dillon, 

1  Moll.  236. 


Title    XII.     Trust.     Ch.  IV.   s.   5—9.  433 

pel  trustees,  1.  To  permit  the  cestui  que  trust  to  receive  the  rents 
and  profits  of  the  land.  2.  To  execute  such  conveyances  as  the 
cestui  que  trust  shall  direct.  3.  To  defend  the  title  of  the  land 
in   any  court  of  law  or  equity. 

6.  The  necessity  that  the  trustee  should  execute  conveyances 
of  the  land  arises  from  this  circumstance ;  that  as  the  legal 
estate  is  vested  in  him,  and  he  is  considered  in  the   courts 

of  law  as  the  real  owner,  it  *  follows,  that  although  the  *  449 
cestui  que  trust  can  alone  dispose  of  his  equitable  interest, 
yet  he  cannot  convey  the  legal  estate  without  the  concurrence  of 
the  trustee.  But  where  the  cestui  que  trust  has  the  absolute  inter- 
est in  the  trust,  he  can  compel  the  trustee  to  convey  the  legal 
estate  either  to  himself,  or  to  any  other  person  in  fee  simple,  (a)1 

7.  The  cestui  que  trust  is  only  entitled  to  a  conveyance  where 
the  whole  subject  of  the  trust  belongs  to  him.  For  if  lands  are 
devised  to  trustees,  in  trust  to  pay  annuities  ;  and  subject  thereto, 
in  trust  for  A  B  ;  the  legal  estate  cannot  be  taken  from  the  trus- 
tees while  the  annuities  are  subsisting,  (b)" 

8.  Where  there  is  a  cestui  que  trust  in  tail,  he  may  call  on  the 
trustee  to  convey  the  legal  estate  to  him.  And  no  one  can  after- 
wards prevent  him  from  barring  the  entail ;  or  the  trustee  may 
join  with  the  cestui  que  trust  in  barring  the  entail.  But  where 
the  cestui  que  trust  is  only  entitled  to  an  estate  tail,  the  trustee 
ought  not  to  convey  to  him  in  fee  simple.  (c)f 

9.  It  is  a  rule  in  equity,  that  no  act  of  a  trustee  shall  preju- 

(a)  Ante,  c.  2.  (&)  2  P.  Wms.  1U. 

(c)  1  Ab.  Eq.  384.     2  P.  Wms.  131.     Boteler  v.  Allington,  1  Bro.  C.  C.  72. 

P  Where  a  trustee  had  a  discretion  reposed  in  him  by  the  will,  as  to  the  conveyance 
of  the  estate  absolutely  to  the  cestui  que  trust,  and  the  jurisdiction  of  the  Court  is  made 
"  subject  to  any  provisions  contained  in  the  will,"  and  the  Court  are  forbidden  to  "  restrain 
the  exercise  of  any  powers  given  by  the  terms  of  the  will "  it  was  doubted  whether  the 
Court  could  overrule  the  discretion  of  the  trustee  and  order  him  to  transfer  the  property 
to  the  cestui  que  trust;  and  if  it  had  the  power,  it  would  be  exercised  only  on  the  clearest 
proofs.  Morton  v.  Southgate,  28  Maine,  (15  Shep.)  41.  A  decree  cannot  require  a 
trustee  in  conveying  property  to  the  cestui  que  trust,  to  execute  a  general  warranty 
deed  ;  only  a  special  warranty  against  his  own  acts  should  be  required.  Hoare  v.  Har- 
ris, 11  111.  24.     See  also  Dwinelw.  Veasie.  36  Maine,  (1  Heath.)  509.] 

-  An  admininistrator  of  a  trustee  cannot  sell  the  trust  lands  for  payment  of  the  debts 
of  his  intestate.     Robison  v.  Codinan,  1  Sumn.  121. 

[t  Infant  trustees  are  enabled,  by  the  .-tatutc  [I  Will.  4,  c.  GO,  which  repeals  the  7 
Ann,  c.  19,  and  the  subsequent  act-J  to  convey  lands  whereof  they  are  seised  in  trust 
under  the  direction  of  the  Court  of  Chancery.     Tit.  32,  c.  2.] 

vol.   i.  37 


434  Title  XII.     Trust.      Ch.  IV.  s.  9—13. 

dice  the  cestui  que  trust ;  nor  will  the  forbearance  of  trustees,  in 
not  doing  what  it  was  their  duty  to  have  done,  affect  the 
cestui  que  trust ;  since  in  that  case  it  would  be  in  the  power 
of  trustees,  by  delaying  to  do  their  duty,  to  affect  the  rights  of 
other  persons.  Wherefore,  the  rule  in  all  such  cases  is,  that 
what  ought  to  have  been  done,  shall  be  considered  as  done. 
And  so  powerful  is  this  rule,  as  to  alter  the  very  nature  of  things; 
to  make  money  land,  and  land  money,  (a) 

10.  There  is,  however,,  one  exception  to  this  rule ;  for  if  a 
trustee  be  in  the  actual  possession  of  the  estate,  which,  however, 
is  a  case  that  seldom  happens,  and  conveys  it,  for  valuable  con- 
sideration, to  a  purchaser,  who  has  no  notice  of  the  trust,  such 
purchaser  will  be  entitled  to  hold  the  estate  against  the  cestui 
que  trust;  because  confidence  in  the  person  is  still  deemed 
necessary  to  a  trust ;  and  it  is  a  rule  in  equity,  that  an  innocent 
person  shall  not,  in  general,  have  his  title  impeached,  (b) 

11.  If  a  trustee  mortgages  the  estate  to  a  person  who  has  no 

notice  of  the  trust,  the  mortgagee  will  be  allowed  to  hold 
450  *    against  *  the  cestui  que  trust ;  because  mortgagees  are  con- 
sidered as  purchasers,  and  as  having  a  specific  lien  on  the 
estate  ;  whereas  it  has  been  observed  that  estates  held  in  trust  are 
not  subject  to  the  specialty  or  judgment  debts  of  the  trustee,  (c) 

12.  If  a  trustee  sells  to  a  stranger,  who  has  no  notice  of  the 
trust,  and  afterwards  repurchases  from  the  stranger  for  a  valuable 
consideration,  he  will  again  become  liable  to  the  trust,  (d)  1 

13.  Where  a  purchaser  has  notice  of  the  trust,  though  he  pays 
a  valuable  consideration,  he  shall  be  subject  to  it.  For,  as  Lord 
Hardwicke  says :  "  If  a  person  will  purchase  with  notice  of 
another's  right,  his  giving  a  consideration  will  not'  avail  him  ; 
for  he  throws  away  his  money  voluntarily,  and  of  his  own  free 
will."  (e)  2 

(a)  2  P.  Wras.  706.    3  P.  Wms.  215.     Allen  v.  Saver.     Tit.  35.  c.  14. 

(b)  Millard's  case,  2  Freem.  43.  (c)  1  P.  Wins.  278. 

(d)  Bovey  v.  Smith,  1  Vern.  GO,  85,  144.     Tit.  35.  c.  14. 

(e)  Mansell  v.  Mansell,  tit.  16.  c.  7.     3  Atk.  238.     Pearce  v.  Newlyn,  3  Madd.  186. 

f1  Where  the  holder  of  a  mortgage  assigned  it  in  trust  for  the  benefit  of  children, 
and  afterwards  accepted  a  reassignment  of  it  from  the  assignee  in  trust,  he  was  held 
accountable  as  a  trustee  to  the  cestui  que  trust.  Gilchrist  v.  Stevenson,  9  Barb.  Sup. 
Ct.  9.] 

[-  Hallet  v.  Collins,  10  How.  U.  S.  174.  Property  to  which  a  trust  has  attached. 
will  be  subjected  to  the  trust  in  the  hands  of  a  purchaser  for  value,  who  has  constructive 


Title  XII.     Trust.     Ch.  IV.  s.  14—19.  435 

14.  So,  if  a  trustee  conveys  an  estate  to  a  stranger  without 
any  consideration;  though  the  person  to  whom  it  is  conveyed 
has  no  notice  of  the  trust,  yet  he  will  be  liable  to  it.  (a)  f 

15.  We  have  seen  that  a  purchase  from  a  trustee,  with  notice 
of  the  trust,  is  a  fraud,  even  though  the  purchaser  should  pay  a 
valuable  consideration.  But  where  a  trustee  is  authorized  to 
sell,  such  a  purchase  cannot  be  fraudulent.  There  are,  however, 
many  cases  in  which  a  purchaser,  with  notice  of  the  trust,  is 
answerable  for  the  trustee,  and  therefore  bound  to  see  that  his 
money  is  applied  in  execution  of  the  trust,  (b) 

16.  Thus,  where  a  person  conveys  or  devises  his  estate  to 
trustees,  upon  trust  to  sell  it,  for  payment  of  certain  debts  speci- 
fied in  the  deed  or  will,  or  in  any  schedule  thereto  annexed ;  a 
purchaser  will  in  that  case  be  bound  to  see  that  his  money  is 
applied  in  payment  of  those  debts,  (c) ! 

17.  So,  where  a  decree  was  made  for  the  sale  or  mortgage  of 
an  estate,  with  a  direction  that  the  money  should  be  applied  in 
payment  of  debts  which  were  ascertained  by  the  report  of  the 
Master,  Lord  Hardwicke  held,  that  a  purchaser  under  that 
decree,  was  bound  to  see  to  the  application  of  his  money,  (d) 

18.  Legacies  stand  upon  the  same  ground  as  specified  or 
scheduled  debts ;  therefore  a  purchaser  must  see  that  his  money 
is  applied  in  payment  of  them. 

19.  It  is  the  same  where  estates  are  conveyed  or  as- 
signed to  trustees,  upon  *  trust   to    sell,   and   apply  the    *  451 
money  for  any  particular  or  specific  purpose ;  a  purchaser 

of  the  estate,  with  notice  of  the  trust,  is  bound  to  see  to  the 
application  of  the  money.  For  if  the  purposes  to  which  it  is 
directed  are  not  fulfilled  by  the  trustees,  the  estate  will  be  still 
liable  to  them,  in  the  hands  of  the  purchaser. 

(«)  2  Salk.  680.     1  Vera.  149.  (b)  Post,  §  30. 

(c)  Dunch  v.  Kent,  1  Vera.  2G0.     Spalding  v.  Shalmer,  Id.  301. 
(</)  Lloyd  v.  Baldwin,  1  Ves.  173. 

notice  of  the  trust ;  and  this,  although  it  was  irregular  in  the  trustee  to  invest  the  trust 
fund  in  the  property.     Hcth  v.  Richmond,  F.  and  P.  R.  R.  Co.  4  Gratt.  482.] 

f1  St.  Mary's  Church  v.  Stockton,  4  Halst.  Ch.  R.  520.  A  proceeding  in  equity  will 
not  excuse  the  purchaser  from  seeing  to  the  application  of  his  purchase-money.  Duffy 
v.  Calvert,  6  Gill,  487.] 

[t  With  respect  to  trustees  appointed  to  preserve  contingent  remainders,  their  duty 
will  be  stated  in  tit.  XVI.] 


436  Title  XII.     Trust.    Ch.  IV.  s.  20—23. 

20.  Lands  were  vested  in  trustees  by  act  of  parliament,  to 
raise  a  sum  of  money  by  mortgage  to  rebuild  a  printing-house. 
It  was  decreed  that  the  mortgagee  was  bound  to  see  the  money 
applied  accordingly,  (a) 

21.  It  is  a  very  common  practice  to  direct  the  money  arising 
from  the  sale  of  lands  to  be  invested  in  the  funds  in  the  names  of 
the  trustees,  upon  several  trusts ;  nor  does  it  appear  to  have  ever 
been  judicially  settled,  to  what  extent  a  purchaser  is  bound  to  see 
to  the  performance  of  such  a  trust.  In  a  case  of  this  kind,  the 
late  Mr.  Booth  says : — "  I  am  of  opinion  that  all  that  will  be  in- 
cumbent on  the  purchaser  to  see  done  in  this  case,  will  be  to  see 
that  the  trustees  do  invest  the  purchase-money  in  their  own 
names  in  some  of  the  public  stocks  or  funds,  or  on  government 
securities.  And  in  such  case,  the  purchaser  will  not  be  answer- 
able for  any  non-application  (after  such  investing  of  the  money) 
of  any  moneys  which  may  arise  by  the  dividends  of  interest,  or 
by  any  disposition  of  such  funds,  stocks,  or  securities ;  it  not 
being  possible  that  the  testator  should  expect  from  any  purchaser, 
any  further  degree  of  care  or  circumspection,  than  during  the 
time  that  the  transaction  for  the  purchase  was  carrying  on.  And 
therefore  the  testator  must  be  supposed  to  place  his  sole  confi- 
dence in  the  trustees.  And  this  is  the  settled  practice  in  these 
cases.  And  I  have  often  advised  so  much,  and  no  more,  to  be 
done ;  and  particularly  in  the  case  of  the  trustees  under  the 
Duchess  of  Marlborough's  will."  Mr.  Wilbraham  is  said  to  have 
been  of  the  same  opinion,  (b) 

22.  On  the  other  hand,  it  has  been  long  fully  established,  that 
where  lands  are  vested  in  trustees,  to  be  sold  for  payment  of 
debts  generally,  without  any  specification  of  such  debts,  a  pur- 
chaser is  not  bound  to  see  to  the  application  of  his  purchase- 
money,  (c) 

23.  It  is  the  same  where  lands  are  charged  with  the  payment  of 
debts  generally.     Lord  Eldon  has  said,  that  a  charge  is  a  devise 

of  the  estate,  in  substance  and  effect,  pro  tanto,  upon  trust 

452  *    to  *  pay  the  debts.     And  in  another  case,  he  said,  it  had 

been  long  settled,  that  where  a  man  by  deed  or  will  charges 

(a)  Cottrell  v.  Hampton,  2  Vera.  5. 

(b)  Cases  &  Opin.  Vol.  II.  114. 

(c)  1  Vera.  261.     1  Bro.  C.  C.  186.    3  Bro.  C.  C.  96. 


Title  XII.     Trust.     Ch.  IV.  *  23—27.  437 

or  orders  an  estate  to  be  sold,  for  payment  of  debts  generally,  and 
then  makes  specific  dispositions,  the  purchaser  is  not  bound  to 
see  to  the  application,  (a)1 

24.  It  has  been  stated  that  a  purchaser  is  bound  to  see  to  the 
payment  of  legacies.  But  where  a  trust  is  created  for  the  pay- 
ment of  "  debts  and  legacies,"  without  further  specification,  a  pur- 
chaser is  not  bound  to  see  that  his  money  is  applied  in  payment 
of  the  legacies.2 

25.  A  person  devised  his  real  estates  to  trustees,  upon  trust  to 
sell  the  same,  and  out  of  the  money  arising  from  such  sale,  to 
pay  his  own  and  his  father's  «  debts  and  legacies."  Lord  Hard- 
wicke  said, — "  The  subjecting  the  estate  to  the  payment  of  lega- 
cies will  not  make  the  purchaser  answerable  for  the  disposition 
of  the  money  ;  because  the  legacies  cannot  be  paid  without  the 
debts  ;  and  they  are  not  specified."  (b) 

26.  In  a  modern  case,  Lord  Thurlow  said,  that  where  debts 
and  legacies  are  charged  on  lands,  the  purchaser  will  hold  free 
from  the  claim  of  the  legatees ;  for  not  being  bound  to  see  to  the 
discharge  of  debts,  he  cannot  be  expected  to  see  to  the  discharge 
of  legacies  ;  which  cannot  be  paid  till  after  the  debts,  (c) 

27.  Where  a  person  devised  his  estates  to  his  executors,  to  be 
sold  for  payment  of  debts,  in  case  his  personal  estate  should 
prove  deficient ;  it  was  held  that  a  purchaser  was  not  bound  to 
inquire  whether  there  was  a  deficiency  of  the  personal  estate  or 
not.  For  if  the  personal  estate  was  sufficient,  yet  he  should  hold 
the  lands  purchased,  against  the  heir ;  and  the  heir  should  have 
his  remedy  against  the  executor.  But  if  there  be  a  lis  pendens 
between  the  heir  and  executor,  to  have  an  account,  it  is  sufficient 
notice  in  law,  without  actual  notice  of  the  suit ;  so  that  a  pur- 
chaser takes  it  at  his  peril,  (d) 

(a)  Amb.  677.     6  Ves.  654,  n.     7  Ves.  323. 

(6)  Rogers  v.  Skillicorne,  Arab.  188. 

(c)  Jebb  v.  Abbott,  1  Bro.  C.  C.  186,  n.  2d  ed. 

{(I)  Culpepper  v.  Aston,  2  Cha.  Ca.  115.     Vide  Fearne's  Opin.  121,  contra, 


f1  Goodrich  v.  Porter,  1  Gray,  567.] 

[2  Where  a  will  directed  lands  to  be  sold  by  the  executors,  and  the  proceeds  to  re- 
main in  their  hands,  and  they  to  pay  interest  annually  to  the  wife  for  her  life,  and  the 
principal  at  her  death  to  her  children,  a  bond  fide  purchaser  from  the  executors,  who 
paid  them  the  purchase-money,  was  held  not  bound  to  sec  that  it  was  properly  applied 
to  the  purpose  of  the  trust.  Hauser  v.  Shore,  5  Ired.  Eq.  357.  See  Rutledge  v.  Smith, 
Busbco,  Eq.  283.] 

37* 


438  Title  XII.     Trust.     Ch.  IV.  s.  28—31. 

28.  It  has  been  long  settled,  that  where  lands  are  conveyed  to 
trustees,  in  trust  to  sell  and  pay  debts,  if  more  is  sold  than  is 
sufficient  to  pay  the  debts,  that  shall  not  turn  to  the  prejudice  of 
the  purchaser ;  for  he  is  not  obliged  to  enter  into  the  account ; 
and  the  trustees  cannot  sell  just  as  much  as  is  sufficient  to  pay 
the  debts,  (a) 

29.  In  a  case  where  lands  were  directed  by  will  to  be  sold  for 
payment  of  debts,  and  a  decree  made  in  Chancery,  that  the  estate 

should  be  sold  for  that  purpose ;  a  purchaser  under  the 
453  *    *  decree  refused  to  complete  his  purchase,  because  more  of 

the  estate  was  sold  than  was  necessary.  Lord  Thurlow 
said, — "  If  the  Master,  in  selling  the  whole,  has  consulted  the 
convenience  of  the  estate,  he  has  acted  right.  The  power 
given  to  the  trustees  was  to  sell  the  whole,  or  such  part  as  might 
be  expedient.  The  Court  has  decreed  in  the  same  way ;  and  the 
Master,  with  the  consent  of  the  parties  interested,  has  sold  the 
whole.  A  purchaser  cannot  come  in  to  object  to  it."  The  ob- 
jection was  overruled,  (b) 

30.  An  opinion  has  long  prevailed,  that  in  all  cases  where 
lands  are  vested  in  a  trustee  to  be  sold,  the  trustee  is  competent 
to  give  a  discharge  for  the  purchase-money  ;  and  that  the  rule 
affecting  a  purchaser  with  the  misapplication  of  the  trust-money, 
only  applies  where  there  is  no  hand  appointed  to  receive  it;  as  in 
the  case  of  a  specific  charge  on  the  lands  in  the  hands  of  the 
heir  or  devisee  ;  there  a  purchaser,  dealing  with  such  heir  or  de- 
visee, is  bound  to  see  that  such  charge  is  satisfied.  This  opinion 
is  founded  on  the  following  authorities. 

31.  A  person  limited  an  estate  to  trustees,  for  payment  of 
debts  and  legacies.  The  trustee  raised  the  whole  money,  and 
the  heir  prayed  to  have*  the  land.  This  was  opposed,  because 
the  trustees  had  not  applied  the  money,  but  converted  it  to  their 
own  use ;  so  that  the  debts  and  legacies  remained  unpaid.  It 
was  determined  by  the  House  of  Lords,  that  the  heir  should 
have  the  land  discharged,  and  the  legatees  should  take  their 
remedy  against  the  trustees.  For  the  estate  was  debtor  for  the 
debts  and  legacies,  but  not  for  the  faults  of  the  trustees  ;  therefore 
it  was  only  liable  so  long  as  the  debts  and  legacies  should  or  might 

(a)  1  Vera.  303. 

(6)  Lutwych  v.  Winford,  2  Bro.  C.  C.  248. 


Title  XII.     Trust.    Ch.  IV.   s.  31—35.  439 

be  paid.     Where  the  land  had  once   borne  its  burden,  and  the 
money  was  raised,  it  was  discharged,  and  the  trustees  liable,  (a) 

32.  A  purchaser  objected  to  the  title  to  an  estate  which  was 
vested  in  a  trustee,  in  trust  to  sell,  and  to  divide  the  money 
amongst  the  children  of  certain  persons  ;  on  the  ground  that  he 
would  be  liable  to  encounter  the  inconveniences  of  seeing  to  the 
application  of  his  purchase-money.  Lord  Thurlow  decreed  a 
specific  performance  of  the  agreement,  and  refused  to  give  the 
purchaser  his  costs,  (b) 

33.  Lord  Kenyon,  when  Master  of  the  Rolls,  inclined  strongly 
to  the  opinion,  that  where  trustees  have  power  to  sell  they  must 
have  the  power  incident    to  the  character,  namely,   the 

*  power  to  give  a  discharge  for  the  purchase-money.  And  *454 
in  a  late  case,  where  a  purchaser  objected  to  a  title,  on  the 
ground  that  he  was  bound  to  see  to  the  application  of  the  money, 
Sir  W.  Grant  overruled  the  objection  upon  another  ground,  but 
said  : — "  I  think  the  doctrine  upon  that  point  has  been  carried 
farther  than  any  sound  equitable  principle  will  warrant.  Where 
the  act  is  a  breach  of  duty  in  the  trustee,  it  is  very  fit  that  those 
who  deal  with  him  should  be  affected  by  an  act  tending  to  defeat 
the  trust  of  which  they  have  notice.  But  where  the  sale  is  made 
by  the  trustee  in  performance  of  his  duty,  it  seems  extraordinary 
that  he  should  not  be  able  to  do  what  one  should  think  incidental 
to  the  right  exercise  of  his  power ;  that  is,  to  give  a  valid  dis- 
charge for  the  purchase-money,  (c) 

34.  It  is  the  usual  practice  to  insert  a  clause  in  all  deeds  and 
wills,  by  which  trustees  are  enabled  to  sell  lands,  declaring  that 
their  receipt  shall  be  a  sufficient  discharge  to  the  purchasers, 
who  shall  not  be  answerable  or  accountable  for  the  misapplica- 
tion or  non-application  of  the  purchase-money.  And  it  is  fully 
settled  that  where  a  clause  of  this  kind  is  inserted  in  a  deed  or 
will,  by  which  trusts  are  created,  the  trustees  may  make  a  good 
title  to  a  purchaser.  But  in  a  case  of  this  kind,  all  the  trustees 
must  join  in  the  receipt. 

35.  Mrs.  Crewe  conveyed  an  estate  to  the  use  of  herself  for 
life,  remainder  to  three  persons,  their  heirs  and  assigns,  in  trust 
to  sell ;  with  a  proviso,  that  the  receipts  of  those  three  persons 

(a)  Anon.  1  Salk.  153. 

(0)  Cuthbert  v.  Baker,  Trin.  1790.     Sugd.  Vend.  378,  3d  ed. 

(c)  4  Vcs,  00.   Balfour  v.  Welland,  1C  Vcs.  151.    Sowarsby  v.  Lacy,  4  Mad.  142. 


440  Title  XII.     Trust.     Ch.  IV.    s.  35—37. 

be  a  sufficient  discharge  to  the  purchasers.  One  of  the  trustees 
died;  another  refusing  to  act,  conveyed  his  interest  to  the  re- 
maining trustee,  who  sold  the  estate.  The  purchaser  refused  to 
take  the  title  unless  the  trustee  who  had  conveyed  his  interest, 
would  join  in  the  receipt  for  the  purchase-money,  which  he 
declined.  Lord  Rosslyn  said,  he  must  allow  the  objection ;  if 
the  trustee  had  renounced,  he  might  dissent ;  for  then  the  whole 
estate  would  have  been  in  the  remaining  trustee.  But  according 
to  the  way  they  managed  it,  he  had  accepted  the  trust  and  con- 
veyed away  the  estate.  That  part  of  the  trust  that  consisted  in 
the  application  of  the  money,  he  could  not  convey  away.  The 
purchaser  taking  the  title  with  the  knowledge  of  the  trust,  would 

be  bound  to  see  to  the  application  of  the  money,  (a) 
455  *       [36.  In  a  later  case,  Lord  Eldon,  C,  decided  that  *  where 

a  trustee  executes  no  other  act  than  a  conveyance  to  his 
co-trustees,  the  meaning  and  intent  of  that  conveyance  being  a 
disclaimer,  the  release  shall  operate  as  such  disclaimer ;  and  the 
disclaiming  trustee  need  not  join  in  receipts  for  the  purchase- 
money.  This  was  the  case  of  a  will,  declaring  that  the  receipts 
in  writing  of  the  trustees  or  trustee,  for  the  time  being,  should 
be  discharges,  (b)  ' 

37.  Trustees   have   all   equal  power,  interest,  and  authority; 
they  cannot  act  separately,  but  must  all  join,  both  in  conveyances 

(a)  Crewe  v.  Dicken,  4  Ves.  27. 

(b)  Nicloson  v.  Wordsworth,  2  Swan.  365.     See  also  3  Bar.  &  Aid.  13. 


1  In  regard  to  the  application  of  the  purchase-money,  the  principle  of  the  English 
cases  seems  to  be  this ;  that  where  the  objects  of  the  trust  are  limited  and  denned,  so  that 
the  trustee  has  no  other  duty  than  to  receive  the  money  and  immediately  pay  it  over  to 
a  hand  already  designated  and  capable  to  receive  it,  the  purchaser  is  responsible  to  see 
that  it  is  so  paid.  But  if  the  trust  is  general  and  undefined,  or  the  nature  of  it  re- 
quires that  the  money  should  remain  in  the  trustee's  hands  for  a  season  for  any  other 
purpose,  or  subject  to  any  lien  or  unliquidated  deduction  in  his  behalf,  the  purchaser  is 
not  bound  to  see  to  the  application  of  it.  If  the  trustee  sold  to  pay  his  own  debt,  or 
otherwise  in  breach  of  the  trust,  the  purchaser,  having  notice  of  the  fact  at  the  time,  is 
liable.  See  2  Story,  Eq.  Jur.  §  1127—1135,  and  cases  there  cited.  In  the  United 
States,  this  doctrine  has  rarely  been  administered,  except  in  cases  of  fraud,  in  which  the 
purchaser  was  a  coadjutor;  the  general  rule  here  being,  that  the  purchaser,  who  in 
good  faith  pays  the  purchase-money  to  the  person  authorized  to  sell,  is  not  bound  to 
look  to  its  application ;  and  that  there  is  no  difference  in  this  respect  between  lands 
charged  in  the  hands  of  an  heir  or  devisee  with  the  payment  of  debts,  and  lands  devised 
to  a  trustee  to  be  sold  for  that  purpose.  Potter  v.  Gardner,  12  Wheat.  498,  502;  3  Ma- 
son, R.  218,  S.  C.    And  see  Andrews  v.  Sparhawk,  13  Pick.  393,  401. 


Title  XII.     Trust.     Ch.  IV.  s.  37—39.  441 

and  receipts.  But  although  two  trustees  join  in  a  receipt,  where 
the  money  is  in  fact  paid  to  one  of  them  only,  yet  the  trustee 
who  actually  received  the  money  will  in  general  only  be  account- 
able, [unless  the  concurrence  of  the  others  involves  in  it  culpable 
negligence.]  (a)  J 

38.  In  all  modern  deeds  by  which  trusts  are  created,  a  clause 
is  inserted  that  each  trustee  shall  be  accountable  for  such  sums 
only  as  shall  actually  come  to  his  hands.  And  it  has  been  de- 
termined in  a  modern  case,  that  this  does  not  bind  the  trustees 
as  a  covenant,  but  is  a  clause  of  indemnity ;  and  the  sense  of  it 
is  this,  that  the  trustees  and  their  heirs  shall  not  be  accountable 
for  more  than  they  receive,  (b) 

39.  The  Court  of  Chancery  will  not  in  any  case  permit  a 
trustee  to  derive  a  benefit  from  the  trust.  Therefore,  if  a  trustee 
compounds  a  debt,  or  buys  it  for  less  than  is  due  upon  it,  he 
shall  not  derive  any  advantage  to  himself  from  such  a  transac- 

(a)  Fellows  r.  Mitchell,  1  P.  Wins.  81.  Treat,  of  Eq.  B.  2.  c.  7.  s.  5.  (Sinclair  v.  Jack- 
son, 8  Cowefi,  543,  583..)     3  Sim.  265.     Lewin  on  Trusts,  p.  2CG.     Story  on  Agency,  §  42. 

(b)  Bartlett  v.  Hodgson,  1  Term  R.  42. 

i  It  is  agreed,  as  a  general  rule,  that  trustees  are  responsible  only  for  their  own  acts, 
and  not  for  the  acts  of  each  other.  2  Story,  Eq.  Jur.  §  1282:  4  Kent,  Coram.  307, 
note  (c)  5th  ed.;  Ward  v.  Lewis,  4  Pick.  518;  1  Sand,  on  Uses  and  Trusts,  p.  445, 
5th  cd.  To  this  rule  there  are  several  exceptions,  all  of  which  may  be  referred  to  one 
or  the  other  of  these  two  principles  ;  First,  where  the  act  was  the  joint  act  of  both  or 
all  the  trustees ;  for  then  each  identifies  himself  with  each  and  all  of  the  others.  Such  is 
the  case  where  they  jointly  receive  money.  Of  such  joint  liability,  the  giving  of  a  joint 
receipt  is  prima  facie  evidence,  but  not  conclusive  ;  for  it  may  be  rebutted  by  showing 
that  their  joining  in  the  receipt  was  necessary,  or  was  merely  formal,  and  that  the  money 
was  properly  and  in  fact  received  by  one  alone.  Secondly,  where  the  party  charged 
has  himself  been  guilty  of  some  neglect  or  violation  of  duty  in  regard  to  the  matter 
complained  of;  as  for  example,  where  he  has  negligently  suffered  his  companion  to 
receive  and  waste  the  trust  funds,  when,  by  the  exercise  of  reasonable  care  and  dili- 
gence, he  might  have  prevented  it ;  or  where,  by  the  positive  act,  direction,  or  agree- 
ment of  one  trustee,  the  money  comes  into  the  hands  of  the  other,  when  it  might  and 
should  have  been  controlled  or  secured  by  both.  2  Story,  Eq.  Jur.  §  1281—1284; 
4  Kent.  Comm.  307;  Monell  v.  Monell,  5  Johns.  Ch.  283,  296;  Willis  on  Trustees, 
194—196;  Hewett  v.  Foster,  6  Beav.  259;  [Wilbur  v.  Almy,  12  How.  U.  S.  180; 
Kidgeley  v.  Johnson,  11  Barb.  Sup.  Ct.  527  ;  Latrobe  v.  Tiernan,  2  Md.  Ch.  Dec.  474; 
Royall  v.  McKcnzie,  25  Ala.  363  ;  State  v.  Guilford,  18  Ohio,  500;  Husband  v.  Davis, 
4  Eng.  Law  &  Eq.  Rep.  342.]  In  England,  a  joint  receipt,  given  by  several  executors, 
is  held  conclusive  against  all;  but  in  the  United  States,  though  cogent  evidence,  it  is 
not  universally  held  conclusive.  2  Story,  Eq.  Jur.  §  1281 .  [Where  a  trust  is  appointed 
for  private  purposes,  all  the  trustees  must  join  in  receipts  for  money,  but  in  cases  of 
public  trusts,  a  majority  of  the  trustees  will  be  sufficient.  Hill  v.  Josselyn,  13  S.  &  M. 
597.1 


442  Title  XII.     Trust.     Ch.  IV.  s.  39—41. 

tion.1  But  where  a  trustee  releases  or  compounds  a  debt,  if  it 
appear  to  have  been  done  for  the  benefit  of  the  trust,  the  trustee 
will  be  excused,  (a) 

40.  Wherever  trustees  are  guilty  of  a  breach  of  trust,  the  Court 
of  Chancery  will  compel  them  to  reimburse  the  cestui  que  trust, 
for  any  loss  which  he  may  have  sustained.  Thus,  if  a  trustee 
sells  the  estate,  he  will  be  compelled  in  equity  to  make  a  full 
compensation  to'  the  cestui  que  trust.  And  if  a  trustee  conceals 
any  act  done  by  a  co-trustee,  which  amounts  to  a  breach  of  trust, 
he  will  thereby  make  himself  equally  liable,  (b)  2 

41.  Lord  Hobart  is  said  to  have  been  of  opinion,  that  an  ac- 
tion at  law  might  be  maintained  against  a  trustee  for  breach  of 
trust.  This  is  not  consistent  with  Lord  Hardwicke's  definition  of 
a  trust;  namely,  that  it  is  such  a  confidence  between  parties, 

that  no  action  at  law  will  lie ;  but  is  merely  a  case  for 
456  *     the  consideration  *  of  a  court  of  equity.     It  is,  however, 

observable,  that  even  in  equity  the  cestui  que  trust  is  con- 
sidered only  as  a  simple  contract  creditor,  in  respect  of  such 

(a)  3  P.  Wms.  251.     Forbes  v.  Ross,  1  Bro.  C.  C.  130. 

(b)  Smith  v.  French,  2  Atk.  243.     Boardman  v.  Mossman,  1  Bro.  C.  C.  68. 


i  Green  v.  Winter,  1  Johns.  Ch.  R.  26 ;  Van  Horn  v.  Fonda,  5  Johns.  Ch.  E.  388, 
409;  Evertson  v.  Tappan,  Id.  497,  513;  Morret  v.  Paske,  2  Atk.  54.  So,  if  a  trustee, 
by  means  of  his  situation,  obtains  the  renewal  of  a  lease,  he  shall  hold  it  for  the  benefit 
of  the  cestui  que  trust.  Holridge  v.  Gillespie,  2  Johns.  Ch.  R.  30 ;  Wilson  v.  Troup, 
2  Cowen,  R.  195 ;  James  v.  Dean,  11  Ves.  383,  392 ;  Griffin  v.  Griffin,  1  Sch.  &  Lefr. 
352.  So,  if  he  should  misapply  or  wrongfully  invest  or  employ  the  trust  funds,  the 
cestui  que  trust  may  demand  either  the  security  or  other  property  in  which  the  funds  were 
invested,  or  the  original  capital  and  interest.  Steele  v.  Babcock,  1  Hill,  N.  Y.  Rep.  527. 
And  see  Davis  v.  Wright,  2  Hill,  S.  Car.  Rep.  560 ;  Arnold  v.  Brown,  24  Pick.  89.  96 ; 
4  Kent,  Comra.  306,  807  ;  2  Story,  Eq.  Jur.  §  1211, 1261,  1262;  Oliver  v.  Piatt,  3  How. 
S.  C  Rep.  333,  401.  [If  trustees  lend  money  on  usurious  interest,  the  profits  will  enure 
to  the  cestui  que  trust.     16  How.  U.  S.  535.] 

2  [Trustees  who,  without  sufficient  cause,  doubted  the  identity  of  their  cestui  que  trust, 
and  in  breach  of  trust  paid  over  the  trust  fund  to  others,  were  ordered  to  make  good 
the  same  with  the  costs  and  interest,  the  account  to  be  taken  with  rests.  Hutchins  v. 
Hutchins,  6  Eng.  Law  &  Eq.  Rep.  91.  The  advice  of  counsel  will  not  protect  a  trustee 
from  the  failure  to  discharge  his  duty  properly ;  but  in  case  of  doubt  he  should  apply  to 
a  Court  of  Equity.  Freeman  v.  Cook,  6  Ired.  Eq.  373.  Where  the  trustee  at  the  in- 
stance of  the  cestui  que  trust,  who  was  a  married  woman,  sold  out  stock  and  placed  the 
trust  fund  in  an  improper  state  of  investment,  he  was  charged  with  the  amount  of  the 
dividends  which  would  have  accrued  due  on  the  trust  fund,  had  it  remained  in  its  orig- 
inal state  of  investment.  Mant  v.  Lcith,  10  Eng.  Law  &  Eq.  Rep.  123;  Murray  v. 
Feinour,  2  Md.  Ch.  Dec.  418 ;  Hemphill's  Appeal,  18  Penn.  State  R.  (6  Harris,)  303 ;  Mil- 
ler v.  Whittier,  36  Maine,  (1  Heath,)  577.] 


Title  XII.     Trust     Ch.  IV.  s.  41—43.  443 

breach  of  trust ;  unless  the  trustee  has  acknowledged  the  debt  to 
the  trust  estate,  under  his  hand  and  seal,  (a) 

42.  It  is  usual  to  insert  in  all  deeds  by  which  trusts  are  created, 
a  clause  that  the  trustees  shall  not  be  answerable  for  any  misfor- 
tune, loss,  or  damage,  which  may  happen  in  the  execution  of  the 
trusts,  unless  they  arise  from  their  own  wilful  default.  But 
courts  of  equity  charge  trustees,  and  also  their  representatives, 
with  the  consequences  of  a  breach  of  trust,  whether  they  derive 
a  benefit  from  the  trust  or  not.  (b) 

43.  It  is  an  established  rule  that  a  trustee  shall  have  no  allow- 
ance for  his  care  and  trouble  in  the  execution  of  the  trust ;  for  on 
pretences  of  this  kind  the  trust  estate  might  be  impoverished; 
besides  the  great  difficulty  there  might  be  in  adjusting  the 
quantum  of  such  allowance,  as  one  man's  time  may  be  more 
valuable  than  another's ;  nor  can  there  be  any  hardship  in  this, 
because  every  person  who  is  appointed  a  trustee  may  choose 
whether  he  will  accept  the  trust  or  not.  (c)  1 

(a)  1  Ab.  Eq.  384.      2  Atk.  612.     Forrest,  109.      2  Atk.  19.     Perry  v.  Phelips.  ante,  c.  1. 
§  51. 
(6)  Montfort  v.  Cadogan,  17  Ves.  485. 
(c)  Treat,  of  Eq.  B.  2.  c.  7.  s.  3.     (1  Sand.  Uses  and  Trusts,  c.  3.  $  9,  16.) 


1  In  the  United  States,  it  is  now  generally  considered  to  be  for  the  advantage  of  all 
who  are  interested  in  estates  held  in  trust,  that  for  the  care  and  diligence  of  the  trustee 
in  the  management  of  the  estate,  a  reasonable  compensation  should  be  made,  graduated 
by  his  actual  labor  and  service  in  each  particular  case.  Where  no  other  rule  is  estab- 
lished, either  by  statute  or  settled  practice,  the  case  is  usually  treated  by  analogy  to 
that  of  executors  and  guardians,  according  to  the  course  of  the  Courts  of  Probate,  or  to 
that  of  agents  and  factors  among  merchants,  as  the  circumstances  of  the  case  may 
require;  and  the  compensation  is  allowed  accordingly.  See  Barrell  v.  Joy,  16  Mass. 
221 ;  Gibson  v.  Crchore,  5  Pick.  146,  161;  Mass.  Stat.  1838,  ch.  144;  Dixon  v.  Homer, 
2  Mete.  420;  Pennsylvania,  Eev.  Stat.  1836,  ch.  451,  §  29,  Dunlop's  edition,  p.  687 ; 
Winder  v.  Diffendcrffer,  2  Bland,  Ch.  R.  166;  Jones  v.  Stockett,  Id.  409;  Pusey  v. 
Clemson,  9  S.  &  R.  209;  Walker's  estate,  Id.  223  ;  Miller  r.  Beverley,  4  Hen.  &  Munf. 
415—419;  Ringgold  v.  Einggold,  1  Har.  &  Gill,  11  ;  Wilson  v.  Wilson,  3  Binn.  557, 
560.  In  New  York,  the  English  rule  was  held  by  Chancellor  Kent  to  be  imperative,  as 
the  settled  law  of  the  State,  in  Manning  v.  Manning,  1  Johns.  Ch.  R.  527,  534;  Green 
v.  Winter,  Ibid.  27.  See  post,  tit.  15,  ch.  2,  §  30,  note.  •[Barney  v.  Saunders,  16  How. 
U.  S.  535  ;  Sherill  v.  Shuford,  6  Ired.  Eq.  228  ;  Eaiford  v.  Raiford,  lb.  490 ;  Clark  v. 
Hoyt,  8  lb.  222;  De  Peyster,  Matter  of,  4  Sandf.  Ch.  511.] 

In  England,  some  disposition  to  relax  the  rule  seems  recently  to  have  been  mani- 
fested ;  for  though  it  is  held  that  a  solicitor  or  attorney,  being  trustee  or  executor,  can- 
not charge  for  professional  services,  but  only  for  moneys  out  of  pocket,  and  services  not 
professional ;  New  v.  Jones,  5  Monthly  Law  Mag.  264  ;  Moore  v.  Frowd,  3  My.  & 
Craig.  45  ;  Jolliffe  v.  Hector,  12  Sim.  398;  yet  it  has  been  conceded  that  the  rule  is  not 


444  Title  XII.     Trust.     Ch.  IV.  s.  44—47. 

44.  But  in  a  case  where  there  was  a  direction  in  a  will  that 
the  trustees  should  be  paid  for  their  trouble  as  well  as  expense, 
and  it  being  objected  that  this  might  be  of  general  prejudice, 
Lord  Hardwicke  said,  this  was  a  legacy  to  the  trustees,  to  whom 
the  testator  might  give  satisfaction  if  he  pleased.  In  Sergeant 
Hall's  will,  Sir  Richard  Hopkins's,  and  the  Duchess  of  Marl- 
borough's, there  was  a  great  allowance  made  to  the  trustees  for 
their  trouble,  and  no  inconvenience ;  because  it  could  carry  it  no 
farther  than  where  there  were  particular  directions.  The  Master 
was,  therefore,  directed  to  inquire  what  the  trustees  might  reason- 
ably deserve  for  their  trouble,  (a) 

45.  Two  persons,  executors  and  trustees  under  a  will,  refused 
to  prove  or  suffer  the  cestuis  que  trust  to  take  out  administration 
with  the  will  annexed,  until  he  had  executed  a  deed  by  which 
he  bound  himself  to  pay  X100  to  one,  and  <£200  to  the  other 
trustee,  within  six  months  after  they  should  have  exhibited  an 
inventory.  Lord  Hardwicke  decreed  that  the  deed  was  *unduly 
obtained,  and  that  no  allowance  should  be  made  to  the  trustees 

and  executors;  observing  that  the  Court  would  be  ex- 
457*     tremely  cautious    and   wary   in   establishing   *  any  such 

agreements  for  extraordinary  allowances  beyond  the  terms 
of  the  trust,  (b)  1 

46.  A  trustee  will,  however,  be  allowed  all  costs  and  expenses 
which  he  has  been  put  to  in  the  execution  of  his  trust,  unless  he 
has  been  guilty  of  improper  conduct,  (c) 

47.  Thus,  if  a  trustee  sues  in  Chancery  for  the  trust  estate, 
and  obtains  a  decree,  with  costs,  and  afterwards  the  cestui  que 
trust  exhibits  a  bill  against  him  for  an  account  of  the  trust  estate ; 

(a)  Ellison  r.  Airey,  1  Ves.  112.  (4)  Ayliffe  v.  Murray,  2  Atk.  58. 

(c)  Treat,  of  Eq.  b.  2.  c.  7.  §  3.  (Green  v.  Winter,  1  Johns.  Oh.  K.  37.  Murray  v.  De 
Eottenham,  6  Johns.  Ch.  E.  67.) 


inflexible,  and  that  in  special  cases  a  compensation  for  such  services  may  be  made  to 
him  by  the  Court,  by  a  fixed  s<fm,  according  to  the  circumstances  of  the  case.  Bain- 
brigge  v.  Blair,  8  Beav.  588;  9  Jur.  765 ;  [State  v.  Piatt,  4  Harring.  154;  Ohio  Co.  v. 
Winn,  4  Md.  Ch.  Decis.  310;  Mayer  v.  Galluchat,  6  Eich.  Eq.  1.] 

1  But  he  observed  also  that  there  might  be  cases  where  Chancery  would  establish 
such  agreements ;  and  it  seems  that  in  a  special  case  a  trustee  may  be  allowed  a  reason- 
able compensation.  Sec  Willis  on  Trustees,  p.  148  ;  Marshall  v.  Holloway,  2  Swanst. 
453  ;  Cb.eth.am  v.  Ld.  Audley,  4  Ves.  72. 


Title  XII.     Trust.     Ch.  IV.  s.  47—51.  445 

the  trustee  will  be  allowed  in  his  disbursements  his  full  costs,  and 
will  not  be  concluded  by  the  costs  that  were  taxed.    («)  f 

48.  It  is  said  by  Lord  King  to  be  a  rule,  that  the  cestui  que 
trust  ought  to  save  the  trustees  harmless,  as  to  all  damages  re- 
lating to  the  trust :  therefore,  where  a  trustee  has  honestly  and 
fairly,  without  any  probability  of  being  a  gainer,  laid  out  money, 
by  which  the  cestui  que  trust  is  benefited,  he  ought  to  be  re- 
paid, (b) 

49.  In  all  modern  deeds  whereby  trusts  are  created,  there  is  a 
clause  authorizing  the  trustees  to  reimburse  themselves  all  costs 
and  expenses  which  they  shall  be  put  to  in  the  execution  of  their 
trust. 

50.  It  was  formerly  held  that  a  trustee  should  not  purchase  any 
part  of  the  trust  estate  for  himself  on  account  of  the  dangerous 
consequences  that  might  ensue  from  such  a  practice. 

51.  Thus  it  was  declared  by  Lord  Hardwicke  that  the  Court 
of  Chancery  will  not  suffer  a  trustee  to  purchase  the  estate  of 
the  cestui  que  trust,  during  his  minority ;  though  the  transaction 
were  fair  and  honest,  and  as  high,  or  a  higher  price  given  than 
any  other  person  would  give.  This  the  Court  had  always  dis- 
countenanced, upon  account  of  the  general  inconvenience  that 
might  happen  from  bargains  of  this  kind.  But  where  there  was 
a  decree  for  sale  of  a  trust  estate,  and  an  open  bidding  before  the 
Master,  there  the  Court  had  permitted  the  trustee  to  purchase ; 
for  that  was  an  open  auction  of  the  estate.'  At  the  same  time, 
he  said,  the  rule  of  the  Court  against  trustees  purchasing  did  not 
extend  to  trusts  for  persons  of  full  age.  (c) 

(a)  Amand  v.  Bradburn,  2  Cha.  Ca.  128.     Trott  v.  Dawson,  1  P.  Wms.  780.    7  Bro.  P.  C.  20. 
{b)  2  P.  Wms.  455.  (c)  Davison  v.  Gardner,  MSS.  B.-1743. 


[t  A  trustee  is,  however,  liable  to  costs  when  incurred  through  his  unreasonable  and 
improper  conduct.  1  Russ.  &  M.  70 ;  Id.  63-4.]  [It  is  not  necessarily  sufficient  to  en- 
title trustees  to  their  costs  of  suit,  that  they  have  acted  under  the  advice  of  counsel. 
Devey  v.  Thornton,  12  Eng.  Law  &  Eq.  R.  197.] 

1  The  ground  upon  which  Lord  Hardwicke  here  places  the  rule,  has  been  questioned, 
as  being  too  narrow  ;  because  it  does  not  depend  on  the  sale  being  public  or  private, 
or  beneficial  or  not,  to  the  trustee  ;  but  on  the  general  policy  of  preserving  the  integrity 
of  the  trustee,  by  putting  it  out  of  his  power  to  devest  himself  of  that  character  in 
regard  to  the  trust  property.  See  13  Johns.  222;  note  (a);  Bergen  v.  Bennett,  1 
Caines,  Cas.  19,  per  Kent,  J.  [A  purchase  of  land  by  a  trustee  of  his  cest  d  qw  trust 
is  not  void,  but  voidable  only,  at  the  election  of  the  cestui  que  trust,  within  a  reasonable 
time.     Costen's  Appeal,  13  Penn.  State  Rep.  (1  Harris,)  292.] 

vol.  i.  38 


446  Title  XII.     Trust    Ch.  IV.  s.  52—54. 

52.  In  another  case,  where,  on  a  devise  to  sell  for  payment  of 
debts,  the  trustee  himself  purchased  part ;  Lord  Hardwicke  said, 

he  would  not  allow  it  to  stand  good,  although  another 
458  *     person,  *  being  the  best  bidder,  bought  it  for  him  at  a 

public  sale,  for  he  knew  the  dangerous  consequence.  Nor 
was  it  enough  for  the  trustee  to  say,  you  cannot  prove  any  fraud, 
as  it  was  in  his  own  power  to  conceal  it.  But  if  the  majority  of 
the  creditors  agreed  to  allow  it,  he  should  not  be  afraid  of  making 
the  precedent,  (a) 

53.  A  trustee,  who  had  acted  improperly  in  other  respects, 
bought  a  lease,  which  was  part  of  the  trust  property,  at  an  ap- 
praisement ;  and  afterwards  renewed  it  in  his  own  name.  De- 
creed, that  he  should  be  a  trustee  only,  and  account  for  what  he 
purchased  (b) 

54.  In  a  subsequent  case,  it  was  said  there  was  no  general  rule 
that  a  trustee  to  sell  should  not  himself  be  the  purchaser ;  but 
that  he  should  not  thereby  acquire  a  profit1 

(a)  Whelpdale  v.  Cookson,  1  Ves.  9.     Vide  3  Yes.  628. 

(b)  Killick  v.  Flexney,  4  Bro.  C.  C.  161. 

1  The  general  doctrine  on  this  subject  has  been  stated  by  Mr.  Justice  Story  with 
great  clearness  and  precision.  After  having  discussed  the  relation  of  guardian  and 
ward,  with  reference  to  the  estate  of  the  latter,  he  observes  that  in  the  case  of  trustee 
and  cestui  que  trust,  "the  same  principles  govern  as  in  cases  of  guardian  and*ward, 
with  at  least  as  much  enlarged  liberality  of  application,  and  upon  grounds  quite  as 
comprehensive.  Indeed,  the  cases  are  usually  treated  as  if  they  were  identical.  A 
trustee  is  never  permitted  to  partake  of  the  bounty  of  the  party  for  whom  he  acts, 
except  under  circumstances  which  would  make  the  same  valid,  if  it  were  a  case  of 
guardianship.  A  trustee  cannot  purchase  of  his  cestui  que  trust,  unless  under  like  cir- 
cumstances ;  or,  to  use  the  expressive  language  of  an  eminent  Judge,  a  trustee  may 
purchase  of  his  cestui  que  trust,  provided  there  is  a  distinct  and  clear  contract,  ascer- 
tained to  be  such,  after  a  jealous  and  scrupulous  examination  of  all  the  circumstances ; 
and  it  is  clear,  that  the  cestui  que  trust  intended  that  the  trustee  should  buy ;  and  there 
is  no  fraud,  no  concealment,  and  no  advantage  taken  by  the  trustee  of  information 
acquired  by  him  as  trustee.  But  it  is  difficult  to  make  out  such  a  case,  where  the  ex- 
ception is  taken,  especially  when  there  is  any  inadequacy  of  price  or  any  inequality  in 
the  bargain.  And,  therefore,  if  a  trustee,  though  strictly  honest,  should  buy  for  him- 
self an  estate  of  his  cestui  que  trust,  and  then  should  sell  it  for  more,  according  to  the 
rules  of  a  court  of  equity,  from  general  policy,  and  not  from  any  peculiar  imputation 
of  fraud,  he  would  be  held  still  to  remain  a  trustee  to  all  intents  and  purposes,  and  not 
to  be  permitted  to  sell  to  or  for  himself. 

"  But  we  are  not  to  understand,  from  this  last  language,  that,  to  entitle  the  cestui  que 
trust  to  relief,  it  is  indispensable  to  show,  that  the  trustee  had  made  some  advantage, 
where  there  has  been  a  purchase  by  himself ;  and  that,  unless  some  advantage  has  been 
made,  the  sale  to  the  trustee  is  good.     That  would  not  be  putting  the  doctrine  upon  its 


Title  XII.     Trust.    Ch.  IV.  5.  55.  447 

55.  An  estate  was  conveyed  to  six  persons,  in  trust  to  sell  for 
the  benefit  of,  creditors.  The  estate  was  put  up  to  auction,  and 
purchased  by  one  of  the  trustees,  who  afterwards  sold  it  at  a 
profit.  Upon  a  bill  filed  by  some  of  the  creditors,  praying  that 
this  purchase  by  the  trustee  might  be  for  the  benefit  of  the 
creditors ;  Lord  Rossyln  said,  it  was  a  plain  point  of  equity, 
and  a  principle  of  clear  reasoning,  that  he  who  undertakes 
to  act  for  another  in  any  matter,  shall  not  in  the  same  matter 
act  for  himself.  Therefore  a  trustee  to  sell  shall  not  gain  any 
advantage  by  being  himself  the  person  to  buy.  He  is  not  acting 
with  that  want  of  interest,  that  total  absence  of  temptation, 
that  duty  imposed  upon  him,  that  he  shall  gain  no  profit  The 
consequence  is,  beyond  doubt,  that  in  whatever  shape  that  profit 
redounds  to  him,  whether  by  management,  which  is  the  common 
way,  or  by  superior  good  fortune,  it  is  not  fit  that  benefit  should 
remain  in  him.     It  ought  to  be  communicated  to  those  whose 


true  ground,  which  is,  that  the  prohibition  arises  from  the  subsisting  relation  of  trus- 
teeship. The  ingredient  of  advantage  made  by  him  would  only  go  to  establish  that 
the  transaction  might  be  open  to  the  strong  imputation  of  being  tainted  by  imposition 
or  selfish  cunning.  But  the  principle  applies,  however  innocent  the  purchase  may  be 
in  a  o-iven  case.  It  is  poisonous  in  its  consequences.  The  cestui  que  trust  is  not  bound 
to  prove,  nor  is  the  Court  bound  to  decide,  that  the  trustee  has  made  a  bargain  advan- 
tageous to  himself.  The  fact  may  be  so  ;  and  yet  the  party  not  have  it  in  his 
power  distinctly  and  clearly  to  show  it.  There  may  be  fraud  ;  and  yet  the  party  not 
he  able  to  show  it.  It  is  to  guard  against  this  uncertainty  and  hazard  of  abuse,  and  to 
remove  the  trustee  from  temptation,  that  the  rule  does,  and  will  permit  the  cestui  que 
trust  to  come  at  his  own  option,  and,  without  showing  essential  injury,  to  insist  upon 
having  the  experiment  of  another  sale.  So  that  in  fact,  in  all  cases,  where  a  purchase 
has  been  made  by  a  trustee  on  his  own  account  of  the  estate  of  his  cestui  que  trust, 
although  sold  at  public  auction,  it  is  in  the  option  of  the  cestui  que  trust  to  set  aside  the 
sale,  whether  bond  fide  made  or  not."  1  Story,  Eq.  Jur.  §  321 ,  322.  See  also  Davoue  v. 
Fanning,  2  Johns.  Ch.  R.  252,  where  all  the  cases  are  reviewed  and  the  doctrine  ably 
vindicated  by  Chancellor  Kent.  Lazarus  v.  Bryson,  3  Binn.  54  ;  Jackson  v.  Van  Dalf- 
sen,  5  Johns.  43;  Munro  v.  Allaire,  2  Caines,  Cas.  in  £r.  183;  Farnam  v.  Brooks, 
9  Pick.  212;  Prevost  v.  Gratz,  6  Wheat.  481 ;  Jennison  v.  Hapgood,  7  Pick.  1  ;  Cur- 
riers. Green,  2  N.  Hamp.  225;  De  Caters  v.  Lc  Ray  De  Chaumont,  3  Paige,  178; 
Jackson  v.  Walsh,  14  Johns.  407  ;  Dorsey  v.  Dorsey,  1  Har.  &  J.  410;  Richardson  v. 
Jones,  3  Gill  &  J.  163;  Williams  v.  Marshall,  4  Gill  &  J.  323  ;  Murdoch's  case,  2  Bland, 
461 ;  Carter  v.  Harris,  4  Rand.  204,  per  Carr,  J. ;  1  Lomax,  Dig.  257  ;  4  Kent,  Comm. 
438;  Story  on  Agency,  §  211 — 214. 

[The  rule  that  a  trustee,  or  person  standing  in  a  situation  of  trust  and  confidence, 
shall  not  purchase  or  deal  with  the  subject  of  the  trust,  for  his  own  benefit,  is  absolute 
and  universal,  and  subject  to  no  qualifications  or  exceptions.  Conger  v.  Ping,  11 
Barb.  Sup.  Ct.  356;  Pratt  v.  Thornton,  28  Maine,  (15  Shep.)  355;  Irwin  v.  Harris,  6 
Ired.  Eq.  215;  Brothers  v.  Brothers,  7  lb.  150.] 


448  Title  XII.     Trust.     Ch.  IV.  s.  55—58. 

interests,  being  put  under  his  care,  afforded  him  the  means  of 
gaining  that  advantage.  The  trustee  was  decreed  to  account  for 
the  profits,  with  costs,  (a) 

56.  In  another  case  it  was  resolved,  that  where  a  trustee  pur- 
chases the  trust  estate,  however  fair  the  transaction,  it  must  be 
subject  to  an  option  in  the  cestui  que  trust,  if  he  comes  in  reason- 
able time,  to  have  a  resale. 

57.  A  person  devised  his  estate  to  two  trustees,  upon  trust  to 
sell.  One  of  the  trustees  purchased  part  of  the  estate  at  auction. 
A  bill  was  filed  by  the  residuary  legatees,  praying  that  the  sale 

might  be  set  aside,  and  the  premises  resold.  It  appeared, 
459  *     *  upon  the  evidence,  that  the  sale  was  perfectly  fair  and 

open.  Sir  R.  P.  Arden,  M.  R.,  said,  he  would  lay  it  down  as 
a  rule,  that  any  trustee  purchasing  the  trust  property  was  liable  to 
have  the  purchase  set  aside,  if  in  any  reasonable  time  the  cestui  que 
trust  chose  to  say  he  was  not  satisfied  ;  and  that  the  trustee  pur- 
chased, subject  to  that  equity.  And  he  referred  it  to  a  Master  to 
inquire,  whether  it  was  for  the  benefit  of  the  plaintiffs  that  the 
premises  should  be  resold.  If  the  Master  should  be  of  opinion 
that  it  would  be  for  their  benefit,  then  it  was  declared  that  they 
should  be  resold,  (b) 

58.  In  another  case,  however,  Lord  Eldon  allowed  of  a  pur- 
chase, under  a  trust  for  payment  of  debts,  by  the  trustee,  as 
agent  for  his  father,  both  creditors  in  partnership,  chiefly  because 
the  cestui  que  trust  had  full  information  and  the  sole  manage- 
ment of  the  sale ;  making  surveys,  settling  the  particulars, 
fixing  the  prices,  &c.  His  lordship  said,  that  a  cestui  que 
trust  may  deal  with  his  trustee,  so  that  the  trustee  may  become 
the  purchaser  of  the  estate.  But  though  permitted,  it  was  a 
transaction  of  great  delicacy,  and  which  the  Court  would  watch 
with  the  utmost  diligence  ;  so  much,  that  it  was  very  hazardous 
for  a  trustee  to  engage  in  such  a  transaction.  A  trustee  might 
buy  from  the  cestui  que  trust,  provided  there  was  a  distinct  and 
clear  contract,  ascertained  to  be  such,  after  a  jealous  and  scrupu- 
lous examination  of  all  the  circumstances ;  that  the  cestui  que 
trust  intended  the  trustee  should  buy ;  and  there  was  no  fraud, 
no  concealment,  no  advantage  taken  by  the  trustee,  of  information 
acquired  by  him  in  the  character  of  trustee,  (c) 

(a)  Whichcote  v.  Lawrence,  3  Ves.  jun.  740.     8  Ves.  345. 

(b)  Campbell  v.  Walker,  5  Ves.  678.     6  Ves.  625. 

(c)  Coles  r.  Trecothick,  9  Ves.  234.     Chambers  v.  Waters,  3  Sim.  42. 


Title  XII.     Trust.     Ch.  IV.  s.  59—63.  449 

59.  In  a  subsequent  case,  Lord  Erskine  confirmed  a  purchase 
made  by  a  trustee  from  the  cestui  que  trust,  under  particular  cir- 
cumstances, with  the  confirmation  and  acquiescence  of  the  cestui 
que  trust,  (a) 

60.  The  case  of  Campbell  v.  Walker  came  before  Lord  Eldon, 
on  an  appeal  from  the  Rolls,  who  affirmed  the  decree  with  costs ; 
but  said — "  The  principle  has  often  been  laid  down,  that  a  trus- 
tee for  sale  may  be  the  purchaser  in  this  sense ;  that  he  may 
contract  with  his  cestui  que  trust;  that  with  reference  to  the 
contract  of  purchase,  they  shall  no  longer  stand  in  the  relative 
situation  of  trustee  and  cestui  que  trust.  And  the  trustee  hav- 
ing, through  the  medium  of  that  sort  of  bargain,  evi- 
dently, *  distinctly,  and  honestly  proved,  that  he  had  *460 
himself  removed  from  the  character  of  trustee,  his  pur- 
chase may  be  sustained."  (Z>)  f 

61.  Where  a  trustee  refuses  to  accept  a  trust,  the  usual  practice 
is  to  require  him  to  release  all  his  estate  and  interest  to  the  other 
trustees  ;  or  to  execute  a  deed  of  disclaimer.  Where  he  releases, 
he  has  been  considered  as  having,  in  the  first  instance,  accepted 
the  trust ;  and,  therefore,  as  to  that  part  of  such  trust  as  consisted 
of  personal  confidence,  he  could  not  transfer  it  to  the  other 
trustees,  (c) 

62.  It  has  been  stated  that  the  Court  of  Chancery  will  not 
suffer  a  trust  to  fail  for  want  of  a  proper  trustee  ;  therefore,  if  a 
trustee  refuses  to  accept  of  a  trust,  that  Court  will  interpose  ;  and 
either  appoint  a  new  trustee  ox  take  upon  itself  the.  execution  of 
the  trust,  (d)  1 

63.  A  person  devised  all  his  lands  to  two  trustees,  upon  trust 

(«)  Morse  v.  Royal,  12  Ves.  355.  (b)  Ante,  \  59.     13  Ves.  601. 

(c)  Tit.  32.  c.  27.  Crowe  v.  Dicken.  Nicloson  v.  Wordsworth,  2  Swan.  305.  3  Bar.  & 
Aid.  31.    Ante,  s.  35,  30.  (d)  Ante,  c.  1. 

||  In  Lees  v.  Nuttall,  1  Iluss.  &  M.  53,  it  was  decided  that  if  an  agent  employed  to 
purchase  an  estate,  becomes  the  purchaser  himself,  he  is  to  be  considered  as  a  trustee 
for  his  principal.] 

1  The  like  power  is  exercised  in  Chancery,  in  the  United  States,  as  belonging  to  its 
general  jurisdiction  ;  but  in  several  of  the  States  the  subject  is  regulated  by  statutes. 
See  4  Kent,  Comm.  311.  In  England,  provision  for  the  appointment  of  trustees  is 
made  by  Stat.  1  Will.  4,  ch.  60;  which  has  been  held  to  apply,  although  the  instru- 
ment creating  the  trust  contains  an  express  provision  for  the  appointment  of  new  trus- 
tees. See  Foxhall,  in  re,  2  Phill.  281;  Bowles  v.  Weeks,  14  Sim.  591;  Bennett  v. 
Burgis,  5  Hare,  295;  10  Jur.  153;  llyley,  in  re,  3  Hare,  614.  [A  Court  of  Equity  will 
38* 


450  Title  XII.     Trust.     Ch.  IV.  s.  63—67. 

to  sell  and  pay  his  debts.  One  of  the  trustees  desired  to  relin- 
quish the  trust,  and  the  other  was  willing  to  accept  it.  The 
Court  of  Chancery  directed  that  the  trustee,  who  desired  to  re- 
linquish, should  release  to  the  other,  (a) 

64.  In  a  subsequent  case  the  Court  of  Chancery  removed  a 
trustee,  though  he  was  willing  to  act,  his  co-trustees  having  re- 
fused to  join  with  him  in  the  execution  of  the  trust,  (b) 

65.  In  a  late  case  a  decree  was  made  that  a  woman  who  was 
a  trustee,  but  who  had  married  a  foreigner,  should  be  discharged 
from  the  trust,  though  she  denied  any  intention  of  quitting  the 
kingdom,  and  desired  to  continue  in  the  trust.  The  Court  said 
there  was  great  inconvenience  in  a  married  woman's  being  a 
trustee,  (c) 

66.  In  all  modern  deeds  of  trust  there  is  a  proviso,  that  in 
case  of  any  of  the  trustees  dying,  or  being  desirous  of  relinquish- 
ing the  trust,  or  becoming  incapable 1  of  acting  ;  a  new  trustee  shall 
be  appointed,  either  by  the  cestui  que  trust,  or  the  other  trustees  ; 
and  that  the   property  shall  be  conveyed  to  such  new  trustees, 

jointly  with  the  remaining  trustees-!     Where  this  clause 
461  *     *  is  omitted,  the   Court  of  Chancery  will  appoint  a  new 
trustee.2 

67.  By  a  private  act  of  parliament,  estates  were  vested  in  three 

(a)  Travel  r.  Danvers,  Finch,  380.  (i)  Uvedale  v.  Ettrick,  2  Cha.  Ca.  20. 

(c)  Lake  v.  Delambert,  4  Ves.  592. 

not  substitute  for  a  trustee  appointed  by  a  will,  another,  resident  in  a  foreign  jurisdic- 
tion, without  security  for  the  faithful  discharge  of  his  duties,  and  the  sureties  must  be 
amenable  to  the  jurisdiction  of  the  Court.  Ex  parte  Robert,  2  Strobh.  Eq.  86.  A  trus- 
tee, who  from  long  continued  intemperance,  has  become  unfit  to  have  charge  of  the 
trust  property,  will  be  removed  and  a  new  trustee  appointed.  Bayley  v.  Staats,  1  Halst. 
ch.  513 ;  Jones,  Matterof,4  Sandf.  Ch.  615  ;  Russell's  trust,  1  Eng.  Lav/  and  Eq.  Rep. 
225  ;  Tyler's  trust.  8  lb.  96  ;  Snyder  v.  Snyder,  1  Md.  Ch.  Dec.  295  ;  Berry  v.  William- 
son, 11  B.  Mon.  245  ;  Harris  v.  Rucker,  13  lb.  564.] 

1  [The  term  "  incapable,"  in  such  connection,  has  reference  to  personal  incapacity,  and 
the  power  of  appointing  a  new  trustee  cannot  be  exercised  where  a  trustee  having  be- 
come bankrupt,  had  been  indicted  for  not  surrendering,  and  had  gone  abroad.  Watts, 
ex  'parte,  4  Eng.  Law  and  Eq.  Rep.  67  ;  Turner  v.  Maule,  5  lb.  222;  Harrison's  trusts, 
15  lb.  345.] 

[t  Where  a  trustee  of  personal  property,  upon  his  retiring  from  the  trust,  transfers 
the  trust  funds  to  another  trustee  not  duly  appointed  according  to  the  power,  he  con- 
tinues answerable  to  the  cestui  que  trust.     Wilkinson  v.  Parry,  4  Russ.  272.]" 

-  [An  unmarried  woman  conveyed  her  real  and  personal  estate  to  A  in  trust  to  pay 
over  the  income  thereof  to  her  during  her  life,  and  on  her  decease  to  convey  the  prop- 
erty as  she  should  appoint ;  and  reserved  the  power,  except  while  she  should  be  a  mar- 


Title  XII.     Trust.     Ch.  IV.  s.  67.  451 

trustees,  upon  trust  to  sell,  &c.  Mr.  Scott,  one  of  the  trustees, 
being  appointed  attorney-general  of  Upper  Canada,  executed  a 
release.  A  bill  was  filed  against  the  two  remaining  trustees, 
praying  a  reference  to  the  Master  to  appoint  a  new  trustee.  It 
was  said  to  be  a  common  case  ;  and  the  Court  referred  it  to  a 
Master  to  appoint  a  new  trustee,  (a) 

(a)  Buchanan  v.  Hamilton,  5  Ves.  722. 

vied  woman,  to  revoke  all  the  trusts  conveyed  by  this  settlement,  and  dispose  of  the 
property  at  her  pleasure ;  and  the  settlement  provided  that  the  said  trustee  might  re- 
sign at  pleasure,  and  that  the  settler  might  nominate  a  new  trustee,  and  that  said  A 
should  transfer  all  the  trust  property  to  such  new  trustee,  who  should  thenceforth  have 
and  exercise  all  the  rights  and  powers,  and  be  subject  to  all  the  duties  thereby  vested 
in  or  imposed  upon,  said  A.  It  was  held  that  the  power  of  appointment  reserved  to 
the  settler  was  not  exhausted  by  one  appointment  of  a  trustee  on  A's  resignation,  but 
that  on  the  resignation  of  such  new  trustee,  she  might  make  another  appointment,  and 
that  if  such  appointee  was  a  fit  person,  the  Court  would  order  the  trust  property  to  be 
conveyed  to  him.    Bowditch  v.  Banuelos,  1  Gray,  220.] 


DIGEST 


THE  LAW  OF  REAL  PROPERTY. 

BY  WILLIAM   CRUISE,  ESQ. 

BARRISTER    AT    LAW. 


REVISED    AND    CONSIDERABLY    ENLARGED 

BY    HENRY    HOP  LEY    WHITE,    ESQ, 

BARRISTER  AT  LAW,  OF  THE  MIDDLE  TEMPLE. 


FURTHER   REVISED    AND   ABRIDGED,  WITH  ADDITIONS  AND   NOTES   FOR   THE 
USE    OF   AMERICAN   STUDENTS, 

BY   SIMON  GREENLEAF,  LL.D. 

EMERITUS  PROFESSOR  OF  LAW  IN  HARVARD  UNIVERSITY. 


IN   SEVEN   VOLUMES. 


VOLUME  II. 


CONTAINING 


Title  13.  Estate  on  condition. 

14.  Estate  by  statute  mer- 

chant, &c. 

15.  Mortgage. 

16.  Remainder. 


Title  17.  Reversion. 

18.  Joint  tenancy. 

19.  Coparcenary. 

20.  Tenancy  in  common. 


second    edition. 


BOSTON: 
LITTLE,    BROWN    AND     COMPANY 

1856. 


Entered  according  to  Act  of  Congress,  in  the  year  1856, 
By  James  Greenleaf, 
the  Clerk's  Office  of  the  District  Court  of  the   District  of  Massachnsetts . 


RIVERSIDE,     CAMBRIDGE." 
PRIXTED  BY  H.  O.  HOUGHTON  AXD   COMPANY. 


CONTENTS   OF   THE   SECOND   VOLUME. 


TITLE  XIII. 

ESTATE    OK    CONDITION. 


CHAP.  I. 


Nature  and  different   Kinds  of   Condition. 


Sect. 

1.  Nature  of  Conditions 

3.  Expressed  or  implied 

6.  Precedent  or  subsequent 

9.  To  what  Estates  annexed 
10.  At  what  Time 

13.  A  Condition  must  defeat  the  whole  Estate 
15.  Can  only  be  reserved  to  the  Donor 

18.  What  Conditions  are  void 

19.  Conditions  against  Law  . 

20.  Repugrfant  to  the  Nature  of  the  Estate 
29.  Whether  in  such  cases  a  Bond  is  good 
34.  Conditions  of  Non-alienation  sometimes  good 
38.  But  are  construed  strictly 
42.  Do  not  extend  to  an  Underlease 
44.  Unless  there  are  special  Words 
4G.  A  Sale  by  Execution  is  not  an  Alienation 
48.  Unless  there  is  Collusion 
50.  A  Lease  may  determine  by  Bankruptcy 
53.  Conditions  against  Marriage    . 
Gl.  Are  construed  strictly 
66.  Widows  may  be  restrained  from  Marriage 


Star  page. 

2 
id. 
id. 

3 
id. 
id. 

4 
id. 
id. 
id. 

0 

7 
id. 

8 

9 
10 
11 
12 
14 
19 
22 


CONTENTS    OF   VOL.    II. 


CHAP.  II. 


Of  the  Performance  and  Breach  of  Conditions. 


Sect. 

1.  How  a  Condition  is  to  be  performed 

6.  Who  may  perform  it 

10.  At  what  Time         .... 

12.  At  what  Place         .... 

15.  Who  are  bound  to  perform  it 

18.  Effect  of  its  Performance 

19.  What  will  excuse  a  Non-performance 
29.  Where  Equity  relieves  against  Condition 
35.  Where  it  will  not  relieve 
39.  Entry  for  a  Condition  broken 
46.  Who  may  enter        .... 
50.  Grantees  of  Reversions 
52.  Effect  of  such  Entry 
56.  Does  not  defeat  Copyhold  Grants     . 
58.  Apportionment  of  Conditions 
60.  How  a  Condition  may  be  destroyed 
64.  Distinction  between  a  Condition  and  a  Limitation 


- 


Slar  page. 

23 
24 
25 
26 
id. 
27 
id. 
30 
31 
32 
33 
34 
35 
36 
id. 
37 
id. 


TITLE    XIY 


ESTATE    BY    STATUTE   MERCHANT,    STATUTE    STAPLE,    AND    ELEGIT. 

1.  Estates  held  as  a  security  for  Money 38 

6.  Statute  of  Acton  Burnell 39 

7.  Statute  Merchant id 

10.  Statute  Staple         .  40 

13.  Recognizance  .........  41 

14.  Judgment  and  Elegit       ........  42 

20.  When  Judgments  bind  Lands  ......  43 

23.  Judgments  must  be  docketed    .......  44 

29.  Execution  upon  a  Statute  or  Recognizance       .  .  ...  46 

34.  Execution  upon  a  Judgment    .......  48 

41.  Priority  of  the  Crown  in  Executions        .  .         .  .49 

49.  What  may  be  extended  .         .         .         .         .         .         .51 

52.  Terms  for  Years 52 

57.  Trust  Estates 53 

60.  What  is  not  Sable  to  an  Extent 54 

65.  These  Estates  are  only  Chattels      ......  id. 

68.  Must  be  executed  by  Entry 55 

74.  Remedies  upon  Eviction 56 

81.  How  long  they  may  endure     .......  59 

84.  How  they  are  determined        .......  60 

94.  A  Statute,  &c.  will  protect  a  Purchaser  ....  63 


CONTEXTS    OP   VOL.    II. 

TITLE   XV. 

MORTGAGE. 


CHAP.  I. 

Origin  and  Nature  of  Mortgages. 

Sect. 

1.  Origin  of  Mortgages        .... 

7.  Interposition  of  the  Court  of  Chancery    . 

11.  Description  of  a  Mortgage 

16.  Mortgages  in  Fee,  or  for  Years 

19.  Welsh  Mortgages  .... 

20.  Equitable  Mortgages       .... 

21.  All  Restraints  on  Redemption  are  void    . 
82.  Unless  there  is  an  Agreement  for  a  Purchase 
38.  Cases  of  Conditional  Purchases 
42.  A  Power  of  Sale  may  be  given  to  a  Mortgagee 


Star  page. 

64 

66 
67 
68 
69 
id. 
id. 
72 
74 
78 


CHAP.   II. 

Several  Interests  of  the  Mortgagor  and  Mortgagee. 

1.  What  is  the  nature  of  the  Mortgagor's  Estate 

4.  Cannot  commit  Waste     ...... 

5.  Nor  make  Leases  ...... 

9.  After  Forfeiture  has  an  Equity  of  Redemption 

10.  The  Mortgagee  has  the  legal  Estate 

12.  Entitled  to  Rent  after  Notice  .... 

14.  Subject  to  Covenants       ...... 

15.  Cannot  commit  Waste      . 

18.  Nor  make  Leases  ...... 

20.  A  Renewal  of  a  Lease  will  be  a  Trust  for  the  Mortgagor 

21.  Must  account  for  the  Profits    ..... 
30.  An  Assignee  only  entitled  to  what  is  really  due 

32.  A  Mortgage  is  Personal  Estate        .... 

36.  Unless  the  Intention  be  otherwise    .... 

39.  But  the  Land  must  be  reconveyed 


80 
81 
id. 
id. 
id. 
84 
85 
86 
id. 
id. 
id. 
89 
id. 
90 
id. 


CHAP.   III. 

Equity  of  Redemption. 


1.  Nature  of 

3.  May  be  lost  by  Fraud     . 

5.  Similar  to  a  Trust  Estate 

VOL.    I. 


39 


92 
93 
id. 


VI 


CONTENTS    OF   VOL.   II. 


Sect. 

8.  Is  alienable,  devisable  and  descendible 

9.  May  be  mortgaged  and  charged 

11.  Subject  to  Curtesy  ..... 

13.  But  not  to  Dower   ...... 

15.  Unless  the  Mortgage  be  for  Years   . 

1G.  Subject  to  Crown  Debts  .... 

17.  Is  Assets  in  Equity  ..... 

22.  And  sometimes  Legal  Assets     .... 

24.  Effect  of  Devise  for  Payment  of  Debts    . 

26.  Who  may  redeem  ..... 

27.  A  subsequent  Incumbrancer 

30.  A  Dowress,  Jointress,  and  Tenant  by  the  Curtesy 

33.  The  Crown 

35.  Whoever  redeems  must  do  Equity 

56.  No  precise  Time  is  fixed  for  Redemption 

57.  But  twenty  years'  Possession  is  a  Bar 

62.  Exceptions  :  I.  Where  there  is  a  Disability 

68.  II.  Where  an  Account  has  been  settled   . 

72.  III.  Where  the  Mortgage  has  been  acknowledged 

77.  IV.  Where  no  Time  is  appointed  for  Payment 

84.  V.  Where  the  Mortgagor  continues  in  possession 

88.  VI.  Where  there  is  Fraud  in  the  Mortgagee    . 

90.  Committees  of  Lunatic  Mortgagees  may  convey 


Star  paga. 

94 

id. 

95 

97 
102 

id. 
103 
104 

id. 

id. 

id. 
105 

id. 
106 
113 

id. 
114 
116 
117 
118 
121 
122 

id. 


CHAP.  IV. 


Payment  of  the  Mortgage  Money  and  Interest. 


this  Rule 


1.  The  Personal  Estate  first  liable 

4.  Even  in  favor  of  a  Devisee      .... 

9.  A  Disposition  of  the  Personal  Estate  will  not  alter 
10.  Nor  a  Charge  on  the  Real  Estate    . 
15.  Lands  devised  for  Payment  of  Debts  are  applied 
19.  And  also  Lands  descended        .... 
21.  The  Personal  Estate  may  be  exempted    . 
25.  A  specific  Gift  of  a  Chattel  will  exonerate  it    . 

27.  When  the  Personal  Estate  not  liable 

28.  I.  Where  the  Debt  was  contracted  by  another 
30.  Though  there  be  a  Covenant  to  pay  it     . 
34.  Or  a  Charge  on  the  Real  Estate 
36.  II.  Where  an  Equity  of  Redemption  is  purchased 
41.  Unless  the  Purchaser  makes  the  Debt  his  own 
43.  Mortgages  by  Husband  and  Wife    . 

53.  Effect  upon  the  Wife's  Right  where  the  Equity  of  Redemption 

is  not  reserved  to  her  ...... 

54.  Contribution  between  Tenant  for  Life  and  Remainder-man 
56.  Where  Tenant  for  Life  or  in  Tail  pays  off  a  Mortgage      . 
58.  Interest  ......... 


123 
124 
125 

id. 
126 
128 
136 
137 
138 

id. 

id. 
140 
142 
143 

id. 

148 
149 

id. 
150 


CONTEXTS    OF   VOL.   II. 


Vll 


Sect. 

63.  Interest  upon  Interest  not  allowed 

65.  Exceptions.— I.  Where  a  Mortgage  is  assigned 

66.  II.  Where  there  is  an  Account  stated       .... 

67.  Or  settled  by  a  Master 

68.  III.  Where  the  time  is  enlarged 

70.  IV.  Where  the  parties  are  Infants  .... 

72.  Interest  by  Mortgagee  in  possession  after  Mortgage  satisfied 

74.  Who  are  bound  to  pay  Interest 

79.  Mortgage  Money  is  payable  to  the  Executor    . 


Star  page. 

152 
id. 
id. 

152 
153 

id. 

id. 
154 
155 


CHAP.   V. 

Order  in  lolrich  Mortgages  are  paid,  and  means  of  gaining  a  Priority. 


1.  Mortgages  paid  according  to  Priority 

5.  But  not  preferred  to  Statutes,  &c.   . 

7.  Legal  Incumbrances  preferred  to  Equitable  ones 

9.  Where  Possession  of  the  Deeds  gives  a  Priority 
17.  A  defective  Mortgage  not  preferred  to  a  second  effective  one 
19.  But  will  be  preferred  to  Bond  Debts,  &c. 
22.  Priority  may  be  lost  by  Fraud 

28.  Of  Tacking  subsecpaent  to  prior  Incumbrances 

29.  Effect  of  obtaining  a  prior  Term  for  Years 
33.  Where  a  Declaration  of  Trust  of  a  Term  is  sufficient 
35.  How  far  an  Incumbrance  will  protect 
40.  At  what  time  a  prior  Incumbrance  may  be  got  in 

45.  Of  notice         ....... 

46.  Direct  notice  .         .         •         •    "    - 
55.  Constructive  notice  ..... 


157 
158 
159 
163 
167 

id. 
169 
170 

id. 
186 
187 
188 
194 

id. 
195 


CHAP.  VI. 

Foreclosure. 

1.  Nature  of 

5.  A  Foreclosure  binds  an  Entail 

7.  How  far  Infants  are  bound  by  it      . 

11.  Married  Women  are  bound  by  it     . 

12.  Decrees  of  Foreclosure  sometimes  opened 
14.  A  Sale  sometimes  decreed 


197 
198 

id. 
199 

id. 

id. 


via 


CONTENTS    OP   VOL.   II. 


TITLE   XVI. 

REMAINDER. 


Sect. 

2. 

8. 
10. 
11. 
24. 
25. 
32. 
33. 
34. 
35. 
44. 

49. 
56. 
60. 
62. 
63. 
75. 

83. 


CHAP.   I. 

Nature  and  different  Kinds  of  Remainders. 


Star 


he  shall  so  long  live 


Remainders     . 

Vested  Remainders 

Contingent  Remainders 

Different  kinds  of  . 

Exceptions 

Limitation  to  A.  for  ninety  years,  i 

Rule  in  Shelley's  case 

Limitation  to  the  right  Heirs  of  the  Grantor 

Heir  sometimes  a  descriptio  personce 

What  kind  of  uncertainty  renders  a  Remainder  contingent 

An  intervening  Remainder  may  be  contingent,  and  a  subse 

quent  one  vested         ...... 

Two  contingent  Fees  may  be  limited  in  the  alternative 

But  no  Estate  after  a  Remainder  in  Fee  can  be  vested 

Unless  it  be  a  contingent  determinable  Fee 

A  power  of  appointment  does  not  suspend  Remainders 

Effect  of  a  Contingency  annexed  to  a  preceding  Estate 

Adverbs  of  time  only  denote  the  period  when  a  Remainder  is 

to  vest  in  Interest 
A  Contingency  sometimes  considered  as  a  condition  subsequent 


CHAP.   II. 

Event  upon  tvhich  a    Contingent  Remainder  may  be  limited. 

2.  It  must  be  a  legal  act      .....         . 

4.  And  potentia  propinqua  ..... 

9.  Not  repugnant  to  any  Rule  of  Law 

10.  Nor  contrarian t  in  itself  ..... 

16.  It  must  not  operate  to  abridge  the  particular  Estate 

29.  Conditional  Limitations   ...... 

35.  Estates  may  be  enlarged  on  condition 


CHAP.  III. 

Estate  necessary  to  support  a    Contingent  Remainder. 

1.  It  must  be  a  Freehold     ....... 

11.  Unless  the  Remainder  is  for  years    ..... 

13.  A  right  of  entry  to  a  Freehold  is  sufficient 


page. 

202 
203 
204 

id. 
206 

id. 
208 

id. 
209 

id. 

216 
217 

220 

id. 

221 

id. 

225 

228 


230 
id. 
232 
id. 
234 
238 
239 


241 

244 

id. 


CONTENTS    OF   VOL.   II.  IX 

Sect.  Sur  p;1-'- 

17.  But  it  must  be  a  present  right 245 

19.  Both  Estates  must  be  created  by  the  same  Instrument      .         .     246 
24.  Where  the  le^al  Estate  is  in  Trustees,  there  needs  no  other 

preceding  Estate  •         •         •         •         •         •         •         .24/ 


CHAP.   IV. 

Time  when  a  Contingent  Remainder  must  vest. 
A  Contingent  Remainder  must  vest  during  the  particular- Estate    249 


Or  the  instant  it  determines 

Posthumous  Children  take  as  if  born 

A  vested  Remainder  may  take   Effect,  though  the  preceding 

Estate  be  defeated • 

19.  A  Remainder  may  fail  as  to  one  part,  and  take  effect  as  to 
another      ....•••••• 

22.  A  Remainder  may  take  effect  in  some,  though  not  in  all    . 


250 

251 

255 

id. 

256 


CHAP.   V. 

< 

Remainders  limited  by  way  of  Use,  and   Contingent    Uses. 

1.  Remainders  by  way  of  Use      .         .         •         •         •         • 

10.  There  must  be  a  particular  Estate  to  support  the  Remainder 

15.  Will  divest  in  favor  of  Persons  becoming  entitled 

18.  Contingent  Uses 

20.  Springing  Uses 

26.  Shifting  Uses 

32.  Shifting  Clauses  in  Settlements 

37.  Out  of  what  Seisin  they  arise 


258 
261 
262 
id. 
263 
264 
266 
267 


CHAP.  VI. 

How    Contingent  Remainders  and  Contingent   Uses  may  be  destroyed. 

1.  Determination  of  the  particular  Estate  before  the  Contingency 

8.  A  Conveyance  by  way  of  Use  will  not  destroy  a  Remainder 

9.  Nor  a  Conveyance  by  cestui  que  trust 
10.  A  Forfeiture  sometimes  destroys  a  Remainder 
13.  An  Extinguishment  of  the  particular  Estate  destroys  it 
15.  And  also  an  Alteration  in  its  Quantity     . 

28.  How  Remainders  by  way  of  Use  are  destroyed 

29.  Where  created  without  Transmutation  of  Possession 
33.  Where  created  by  Transmutation  of  Possession 
38.  How  Springing  and  Shifting  Uses  are  destroyed 
49.  Observations  on  the  Doctrine  of  the  Scintilla  Juris 

39* 


2  C,\ I 
270 

id. 

id. 
271 

id. 
274 

id. 
276 
277 
282 


CONTENTS    OF   VOL.    II. 


CHAP.   VII. 


Trustees  to  preserve   Contingent  Remainders. 

Sect.  Star  page. 

1.  Invention  of.  .  .       .         .         •        .     '    .  285 

6.  A  Conveyance  by  them  is  a  Breach  of  Trust  .         .         .     286 

8.  Sometimes  not  punished  for  destroying  Contingent  Remainders      288 

11.  Sometimes  directed  to  join  in  destroying  them  .         .         .     290 

16.  In  other  cases  such  direction  refused 293 

25.  Bound  to  preserve  Timber,  &c.         .         .         .         .         .         .301 


CHAP.   VIII. 


Other  Matters  relating  to  Remainders. 


1.  "Where  Contingent  Remainders  are  limited,  the  Inheritance 
remains  in  the  Grantor        ....... 

12.  How  far  this  doctrine  is  applicable  to  Common-Law  Convey- 
ances ....... 

14.  Contingent  Remainders  are  transmissible 

18.  Exception  to  this  Rule     ..... 

20.  A  Contingent  Remainder  may  pass  by  Estoppel 

22.  May  be  assigned  in  Equity      .... 

23.  And  devised  by  Will      . 


326 

330 
331 
332 
333 

id. 

id. 


TITLE   XVII. 

REVERSION. 

1. 

334 

11. 

Arises  from-  the  Construction  of  Law        ..... 

336 

13. 

Is  a  vested  Interest          ........ 

id. 

16. 

But  may  be  divested 

337 

18. 

Incidents  to  Reversions            ....... 

id. 

21. 

After  Estates  for  Years  are  present  Assets       .... 

338 

24. 

After  Estates  for  Life  are  quasi  Assets     ..... 

id. 

27. 

After  Estates  Tail  are  Assets  when  they  come  into  possession 

339 

28. 

And  liable  to  the  Bond  Debts  of  the  Settlor     .... 

id. 

32. 

And  also  to  Leases          ........ 

360 

35. 

All  particular  Estates  merge  in  the  Reversion,  except  Estates 

Tail 

362 

CONTENTS    OF    VOL.  II. 

TITLE    XVIII. 

JOINT    TENANCY. 


CHAP.  I. 

Nature  of  an  Estate  in  Joint  Tenancy. 


Sect. 

1.  Estates  in  Severalty        .... 

2.  In  Joint  Tenancy    ..... 

11.  Circumstances  required  to  this  Estate 

12.  Unity  of  Interest    ..... 

16.  Unity  of  Title 

17.  Unity  of  Time         ..... 

26.  Unity  of  Possession         .... 

27.  Joint  Tenancies  go  to  the  Survivor 

33.  Not  favored  in  Equity     .... 

38.  Who  may  be  Joint  Tenants 

45.  Husband  and  Wife  cannot  be  Joint  Tenants 

51.  Not  subject  to  Curtesy  or  Dower     . 

53.  Joint  Tenants  cannot  charge  their  Estates 

57.  Except  by  Lease 

59.  In  what  Acts  they  must  all  join 

63.  The  Possession  of  one  is  that  of  the  other 

64.  Remedies  against  each  other 


Star  pajre. 

363 
364 
366 

id. 
367 

id. 
369 

id. 
370 
372 
373 
375 

id. 
376 

id. 
377 

id. 


CHAP.   II. 


How  a  Joint  Tenancy  may  be  severed  and  destroyed. 


2.  Destruction  of  the  Unity  of  Interest 

8.  Of  the  Unity  of  Title      . 

9.  Of  the  Unity  of  Possession     . 
10.  By  Alienation  to  a  Stranger    . 

19.  Exception. — Devise 

20.  By  an  Agreement  to  Alien 
22.  By  the  Alienation  of  one  Joint  Tenant  to  the  other 

29.  By  voluntary  Partition    . 

30.  By  Writ  of  Partition 
38.  By  Partition  in  Chancery 
41.  By  an  Agreement  to  make  Partition 
4G.  By  devolving  to  one  Person     . 


378 
379 

id. 
380 
382 

id. 

id. 
384 

id. 
388 
389 
390 


CONTENTS    OF    VOL.    II. 


TITLE   XIX. 


COPARCENARY. 


Sect. 

1.  How  this  Estate  arises    . 

3.  Properties  of  Coparceners 

7.  The  Possession  of  one  is  that  of  the 

10.  Subject  to  Curtesy  and  Dower 

11.  Destroyed  by  Alienation 

12.  By  voluntary  Partition    . 
20.  By  Writ  of  Partition 
26.  What  may  be  divided  by  it 

28.  By  Partition  in  Chancery 

29.  Incidents  after  Partition 
33.  By  Descent  to  one  of  them 


other 


Star  pasre. 

391 

id. 
392 
394 

id. 

id. 
395 
396 
397 

id. 
398 


TITLE  XX. 


TENANCY    IN    COMMON. 


1.  Description  of 

3.  How  created  .         .  .    • 

8.  Incidents  to  this  Estate 
14.  The  Possession  of  one  is  that  of  the 
21.  Subject  to  Curtesy 
23.  And  to  Dower 

26.  As   to  Dower,  with  respect  to  Real  Estate  being 
Property    .... 

30.  Destroyed  by  voluntary  Partition 

31.  By  Writ  of  Partition      . 
34.  By  Partition  in  Chancery 

38.  n.  By  Partition  under  an  Inclosure  Act 

39.  "By  uniting  all  the  Titles 


DIGEST 


OF    THE 


LAW  OF  REAL  PROPERTY, 


TITLE  XIII. 

ESTATE    ON   CONDITION. 
BOOKS    OF   REFERENCE   UNDER    THIS    TITLE. 

Blackstone's  Commentaries.    Book  II.  ch.  10. 

Kent's  Commentaries.    Lect.  57. 

Coke  upon  Littleton,  Lib.  3,  cap.  5,  fol.  201,  a. — 237,  a. 

Thomas  Platt.     A  Practical  Treatise  on  the  Law  of  Covenants.     Part  I.  ch.  2, 

sect.  5.     Id.  Part  II.  ch.  1,  2. 
Owen  Flintoff.     On  the  Law  of  Real  Property.     Vol.  II.  Book  I.  ch.  6. 
Richard  Preston.    Essay  on  Abstracts  of  Title.    Vol.  II.  p.  185 — 198. 
Comyns's  Digest.     Tit.  Condition. 
W.  Sheppard.     Touchstone  of  Common  Assurances.     Ch.  VI. 

CHAP.  I. 

NATURE   AND    DIFFERENT   KINDS    OF    CONDITIONS. 

CHAP.  II. 

OF   THE   PERFORMANCE   AND   BREACH   OF   CONDITIONS. 


CHAP.  I. 

NATURE   AND   DIFFERENT   KINDS    OF   CONDITIONS. 


Sect.     1.  Nature  of  Conditions. 
3.  Expressed  or  Implied. 
6.  Precedent  or  Subsequent. 
9.  To  what  Estate  annexed. 
10.  At  what  Time. 


Sect.  13.  A  Condition  must  Defeat  the 

whole  Estate. 
15.    Can  only  be  Reserved  to  the 

Donor. 
18.   What  Conditions  are  Void. 


466       Title  XIII.     Estate  on   Condition.  Ch.  I.  s.  1—4. 

Sect.  19.   Conditions  against  Lena.  Sect.  46.  A  Sale  by  Execution  is  not 

20.  Repugnant  to  the  Nature  of  j  an  Alienation. 

the  Estate.  48.  Unless  there  is  Collusion. 

29.   Whether    in    such    Cases   a  I  50.  A  Lease   may  determine  by 

Bond  is  good.  Bankruptcy. 

34.   Conditions  of  Non-alienation  I  53.  Conditions      against      Mar- 


sometimes  good. 

38.  But  are  construed  strictly. 

42.  Do  not  extend  to  an  Under- 
lease. 

44.  Unless  there  are  special 
Words. 


riage. 
6 1 .  Are  construed  strictly. 
66.    Widows   may  be   restrained 

from  Marriage. 


Section  1.  A  condition  is  a  qualification  or  restriction  annexed 
to  a  conveyance  of  lands,  whereby  it  is  provided,  That  in  case  a 
particular  event  does  or  does  not  happen ;  or  in  case  the  grantor 
or  grantee  does,  or  omits  to  do,  a  particular  act;  an  estate  shall 
commence,  be  enlarged,  or  defeated.  Conditio  dicitur  cum  quid 
in  casum  incertum  qui  potest  tendere  ad  esse,  ant  non  esse,  con- 
fertur.  (a) 

2.  A  condition  annexed  to  an  estate  given,  is  a  divided  clause 
from  the  grant,  therefore  cannot  frustrate  the  grant  precedent ;  nei- 
ther in  any  thing  expressed,  nor  in  any  thing  implied,  which  is,  of 
its  nature,  incident  to,  and  inseparable  from,  the  thing  granted,  (b) 

3.  Conditions  are  either  in  deed,  that  is,  expressed  in  the  deed 
by  which  they  are  created ;  or  else  in  law,  that  is,  implied  by  the 
common  or  statute  law.  Thus,  where  a  feoffment  or  lease  is 
made,  reserving  rent,  payable  at  a  certain  day,  with  a  proviso, 
that  if  it  is  not  paid  on  that  day,  the  feoffor  or  lessor  may  re- 
enter ;  this  is  a  condition  in  deed,  (c) 

4.  Conditions  implied  are  those  which  are  created  by  the 
common  or  statute  law,  without  any  express  words  : — Thus,  to 
the  grant  of  every  estate  is  annexed,  by  law,  a  condition  implied, 
that  the  grantee  shall  not  commit  felony  or  treason.  And  Lord 
Coke  says,  there  is  a  condition  in  laiv  annexed  to  every  estate 
tail  after  possibility  of  issue  extinct,  estate  by  the  curtesy,  in 
dower  for  life  or  years,  that  if  the  tenants  of  these  estates  alien 
in  fee,1  or  claim  in  a  Court  of  Record  a  greater  estate,  they  shall 

(a)  1  Inst.  201,  a.  {b)  Hob.  170.  (c)  Lit.  s.  325. 


1  This  doctrine  applies  only  to  alienations  by  feoffment ;  and  not  to  deeds  of  bargain 
and  sale,  and  other  conveyances,  which  derive  their  effect  from  the  Statute  of  Uses. 
See,  on  the  subject  of  forfeiture  of  estates  for  these  causes,  ante,  tit.  3,  ch.  1,  §  36. 


Title  XIII.     Estate  on  Condition.     Ch.  1.  s.  4—6.      467 

forfeit  them ;  and  the  persons  in  remainder  or  reversion   may 

enter,  (a) 

5.  As  to  conditions  in  law,  founded  upon  statutes,  it  is  enacted 
by  the  several  laws  against  mortmain,  that  the  grantee  of  an 
estate  in  fee  shall  not  alien  it  to  an  ecclesiastical  corporation. 
And  by  the  Statute  of  Marlbridge,  tenants  for  life  and  years  hold 
their  estates  upon  condition  not  to  commit  waste. 

6.  Conditions  are  also  Precedent  or  Subsequent : — Thus,  where 
a  condition  must  be  performed  before  the  estate  can  commence, 
it  is  called  a  condition  precedent.     But  where  the  effect  of 

a  condition  *  is  either  to  enlarge  or  defeat  an  estate  al-         *  3 
ready  created,  it  is  then  called  a  condition  subsequent? 

(a)  Lit.  s.  325.    1  Inst.  233,  b. 


1  Whether  conditions  are  precedent  or  subsequent,  depends  on  the  intent  of  the 
parties,  to  be  collected  from  the  nature  of  the  case.  The  rules  for  finding  the  intent 
are  the  same  with  those  in  regard  to  covenants  ;  in  speaking  of  which,  Lord  Mansfield 
observed,  that  "  their  precedency  must  depend  on  the  order  of  time  in  which  the  intent 
of  the  transaction  requires  their  performance."  Kingston  v.  Preston,  1  Doug.  689,  691 . 
These  rules,  as  deduced  from  all  the  adjudged  cases,  have  been  thus  stated  by  Serj.  Wil- 
liams : — "  1.  If  a  day  be  appointed  for  the  performance  of  any  act,  and  such  day  is  to 
happen  or  may  happen  before  the  performance  of  the  act  which  is  the  consideration  for 
the  first  mentioned  act,  then  the  covenants  are  considered  mutual  and  independent, 
and  an  action  may  be  brought  without  averring  performance  of  the  consideration  ;  for 
it  appears  that  the  party  relied  upon  his  remedy,  and  did  not  intend  to  make  the  per- 
formance a  condition  precedent ;  and  so  it  is  when  no  time  is  fixed  for  the  performance 
ef  the  consideration.  2.  But  when  the  day  appointed  for  the  payment  of  money  or 
performance  of  an  act  is  to  happen  after  the  thing  which  is  the  consideration  is  to  be 
performed,  no  action  can  be  maintained  before  performance  of  the  condition.  3.  Where 
a  covenant  goes  only  to  part  of  the  consideration  on  both  sides,  and  a  breach  of  such 
covenant  may  be  paid  for  in  damages,  it  is  an  independent  covenant,  and  an  action 
may  be  brought  for  a  breach  of  the  covenant  by  the  defendant,  without  averring  per- 
formance ;  and  when  a  person  has  received  part  of  the  consideration  for  which  he 
entered  into  the  agreement,  it  would  be  unjust  that,  because  he  has  not  had  the  whole, 
he  should,  therefore,  be  permitted  to  enjoy  that  part  without  either  paying  or  doing 
any  thing  for  it ;  and,  therefore,  the  law  obliges  him  to  perform  the  agreement  on  his 
part,  and  leaves  him  to  his  remedy  to  recover  damages  for  not  receiving  the  whole  con- 
sideration. 4.  But  where  the  mutual  covenants  go  to  the  whole  consideration  on  both 
sides,  they  are  mutual  conditions  and  dependent.  5.  Where  two  acts  are  to  be  done 
at  the  same  time,  neither  party  can  maintain  an  action  without  showing  performance 
or  an  offer  to  perform  his  part."  See  1  Saund.  320,  note  (4),  by  Williams ;  Tompkins 
v.  Elliot,  5  Wend.  497,  per  Savage,  C.  J.  See  also  Barruso  v.  Madan,  2  Johns.  148, 
per  Spencer,  J.;  Brockcnbrough  v.  Ward,  4  Rand.  352 ;  Johnson  v.  Beed,  9  Mass.  78 ; 
Gardiner  v.  Corson,  15  Mass.  500;  Couch  v.  Ingersoll,  2  Pick.  292;  Finlay  v.  King, 
3  Pet.  340,  374;  Howard  v.  Turner,  6  Greenl.  106  ;  Green  v.  Thomas,  2  Fairf.  318  ; 
Piatt  on  Covenants,  ch.  2,  sec.  5.     As  to  mutual  covenants,  see  farther,  Green  v.  Bey- 


468     Title  XIII.     Estate  on  Condition.    Cli.  I.  s.  7—13. 

7.  Where  a  particular  estate  is  limited,  with  the  condition  that 
upon  the  performance  of  a  certain  act,  or  the  happening  of  a 
certain  event,  the  person  to  whom  the  estate  is  limited,  shall 
thereupon  have  a  larger  estate  than  what  was  originally  limited 
to  him ;  such  a  condition  is  precedent,  and  good  under  certain 
circumstances,  which  will  be  noticed  in  a  subsequent  title,  (a) 

8.  With  respect  to  the  words  by  which  conditions  may  be 
created,  they  will  be  stated  hereafter,  (b) 

9.  A  condition  in  deed  may  be  annexed  to  every  species  of 
estate  and  interest  in  real  property ;  to  an  estate  in  fee,  in  tail, 
for  life,  or  years,  in  any  lands  or  tenements. 

10.  As  to  things  executed,  a  condition  must  be  created  and  an- 
nexed to  the  estate  at  the  time  of  the  making  of  it,  not  at  any  time 
after.  Therefore,  where  a  condition  is  made  in  a  separate  deed, 
it  must  be  sealed  and  delivered  at  the  same  time  with  the  prin- 
cipal deed,  (c) 

11.  In  a  celebrated  case  which  was  heard  in  parliament,  2 
Rich.  II.,  it  appeared  that  King  Edward  III.  had  made  a  feoff- 
ment in  fee  to  the  Duke  of  Lancaster  and  others,  without  any 
condition ;  and  afterwards  required  the  feoffees  to  perform  cer- 
tain conditions.  All  the  Judges  and  Serjeants  being  summoned, 
and  required  to  give  their  opinion  on  this  case,  declared  that  the 
feoffees  were  not  obliged  to  perform  the  conditions ;  because 
they  were  not  expressed  at  or  before  the  time  when  the  feoffment 
was  made,  (d) 

12.  As  to  the  things  executor?/,  such  as  rents,  annuities, 
[leases,]  &c,  it  is  held  that  a  grant  of  them  may  be  restrained  by 
a  condition  created  (by  act  of  both  parties)  after  the  execution 
of  such  conveyance,  (e) 

13.  It  is  a  rule  of  law  that  a  condition  must  defeat  or  deter- 
mine the  whole  of  the  estate,  to  which  it  is  annexed ;  not  deter- 
to)  Tit.  16,  c.  2.  (b)  Tit.  32,  c.  25.  (c)  1  Inst.  236,  b.     Shep.  Touch.  126. 

(d)  Rot.  Pari.  vol.  3,  p.  61. 

(e)  1  Inst.  237,  a.     Shep.  Touch.  126,  396.    2  Prest.  Con.  199,  1st  ed.     Infra,  s.  38,  n. 

nolds,  2  Johns.  207  ;  Jones  ».  Gardner,  10  Johns.  266  ;  Gazley  v.  Price,  16  Johns.  267  ; 
Hardin  v.  Kretsinger,  17  Johns.  293;  [McCullough  v.  Cox,  6  Barb.  Sup.  Ct.  386; 
Houston  v.  Spruance,  4  Harring.  117;]  Hunt  v.  Livermore,  5  Pick.  395  ;  Pomroy  v. 
Gold,  2  Met.  500  ;  Robertson  v.  Robertson,  3  Rand.  68  ;  Bean  v.  Atwater,  4  Conn.  R. 
3  ;  Sewall  v.  Wilkins,  2  Shepl.  168  ;  Brown  v.  Gammon,  lb.  276.  See  post,  tit.  32,  cli. 
25,  §  10,  note. 


Title  XIII.     Estate  on    Condition.     Ch.  I.  s.  13—17.    469 

mine  it  in  part  only,  and  leave  it  good  for  the  residue.  There- 
fore if  a  feoffment  be  on  condition  that  upon  such  an  event  the 
feoffor  shall  enter  and  have  the  land  for  a  time ;  or  the  estate 
shall  be  void  for  part  of  the  time  ;  or  a  lease  be  for  ten  years, 
provided  that  upon  such  an  event  it  shall  be  void  for  five  years ; 
these  conditions  are  not  good.  But  if  a  feoffment  be  made  of  two 
acres  of  land,  provided  that  upon  such  an  event  the  estate  shall 
be  void  as  to  one  acre  only,  this  is  a  good  condition,  (a) 

*  14.  In  consequence  of  this  principle,  it  has  been  ad-        *  4 
judged  that  a  condition  to  determine  an  estate  tail,  as  if 
the  tenant  in  tail  were  dead,  was  void ;  because  the  death  of  a 
tenant  in  tail  did  not  determine  the  estate  tail,  but  his  death 
without  issue,  (b) 

15.  A  condition  or  the  benefit  of  a  condition,  can  only  be  re- 
served to  the  donor,  feoffor,  or  lessor,  and  their  heirs ;  not  to  a 
stranger.  For  it  is  a  maxim  of  law,  that  nothing  which  lies  in 
action,  entry,  or  reentry,  can  be  granted  over ;  in  order  to  dis- 
courage maintenance.  And  when,  in  the  creation  of  a  condition, 
no  words  of  limitation  are  mentioned,  the  law  will  reserve  the 
benefit  of  the  condition  to  the  heirs  of  the  donor,  feoffor,  or 
lessor ;  for  as  these  are  the  persons  prejudiced  by  the  disposition, 
it  is  but  reasonable  that  they  should  be  entitled  to  the  same 
means  of  recovering  the  estate  as  their  ancestors. 

16.  Thus  Littleton  says,  if  a  man  lets  land  to  another  for  life, 
by  indenture,  rendering  rent,  with  a  condition  of  reentry  in  de- 
fault of  payment ;  if,  afterwards,  the  lessor  grants  the  reversion 
to  a  stranger,  and  the  tenant  for  life  attorns,  such  grantee  cannot 
take  advantage  of  the  condition,  as  the  lessor  or  his  heirs  might 
have  done,  if  the  reversion  had  continued  in  him.  But  now 
by  the  statute  32  Hen.  VIII.  c.  34,  grantees  of  reversions,  and 
privies  in  estate,  are  enabled  to  take  advantage  of  the  breach 
of  conditions,  of  which  an  account  will  be  given  in  the  next 
chapter,  (c) 

17.  In  a  modern  case,  where  A  being  possessed  of  a  term  for 
years,  assigned  his  whole  interest  to  B,  subject  to  a  right  of  re- 
entry, on  the  breach  of  a  condition,  the  Court  of  K.  B.  held  that 
A  might  enter  for  the  condition  broken,  although  he  had  no 
reversion,  (d) 

(a)  1  Rep.  86,  b.     Shep.  Touch.  127.  (i)  .Tcrmin  r.  Arscott,  1  Rep.  85.    6  Rep.  40. 

(c)  Lit.  s.  347.  (d)  Doe  v.  Bateman,  2  Barn.  &  Aid.  R.  108 

vol.  i.  40 


470    Title  XIII.     Estate  on  Condition,     Ch.  I.  s.  18—21. 

18.  Conditions  are  sometimes  void  in  their  creation,  as  where 
they  are  impossible,  or  something  is  required  to  be  done  which  is 
contrary  to  the  divine  or  municipal  law.^ 

19.  All  the  instances  of  conditions  against  law  are  reducible 
under  one  of  these  heads  : — 1.  To  do  something  that  is  malum 
in  se,  or  malum  prohibitum,  2.  To  omit  something  that  is  a 
duty.  3.  To  encourage  such  crimes  and  omissions.  And  the 
law  will  always' defeat  conditions  of  this  kind,  without  any  re- 
gard to  circumstances,  being  concerned  to  remove  all  temptations 
and  inducements  to  those  crimes,  (a) 

20.  A  condition,  repugnant  to  the  nature  of  the  estate  to  which 

it  is  annexed,  is  void  in  its  creation.  Thus,  a  feoffment 
5  *         in  fee,  *  upon  condition  that  the  feoffee  shall  not  take  the 

profits,  is  void,  as  repugnant  and  against  law ;  and  the 
estate  given  is  absolute.  (b)~ 

21.  A  lease  was  made  to  A,  B,  and  C,  with  a  proviso  that  if 

(a)  1  P.  Wms.  189.  (b)  1  Inst.  206,  b. 

1  If  the  condition  is  subsequent,  and  performance  is  rendered  impossible  by  the  act 
of  the  feoffee  or  covenantee,  or  other  party  in  whose  favor  it  is  to  be  performed,  it  be- 
comes void.  U.  States  v.  Arredondo,  G  Pet.  691,  745  ;  Whitney  v.  Spencer,  4  Cow  en, 
39.  If  it  is  impossible  at  the  time  of  its  creation,  as,  to  pay  money  at  a  day  which  is 
already  past,  the  condition  is  void:  but  if  it  be  a  mortgage,  the  remedy  in  Equity  is 
still  preserved.     Hughes  v.  Edwards,  9  Wheat.  4S9,  49;!. 

2  Where  a  devise  was  upon  condition  that  the  devisee  should  make  no  change  in  the 
disposition  of  the  estates  devised,  during  his  life,  the  condition  was  held  repugnant  to 
the  nature  of  the  estate,  and  void.  Taylor  v.  Mason,  9  Wheat-  325,  350.  So,  where 
the  testator  devised  his  estate  to  his  children,  in  case  they  inhabit  the  town  of  H.,  these 
words  were  held  void,  whether  regarded  as  a  condition  or  a  limitation  ;  as  being  both 
repugnant  to  the  nature  of  the  estate,  and  also  unreasonable,  uncertain,  and  nugatory, 
there  being  no  limitation  over.  Newkerk  v.  Newkerk,  2  Caines,  345.  So,  if  the  con- 
dition of  a  devise  be  that  the  land  shall  not  be  subject  to  conveyance  or  attachment,  it 
is  a  void  condition.  Blackstone  Bank  v.  Davis,  21  Pick.  42.  See  also  Scovell  v.  Ca- 
bell, Cro.  El.  107;  Hob.  170;  2  Roll.  Abr.  453,  454;  1  Shep.  Touchst.  129,  131  ;  Gray 
v.  Blanchard,  8  Pick.  284.  [A  grant  was  made  on  the  express  condition  that  the  gran- 
tees, within  a  limited  time,  should  build  and  finish,  on  the  granted  premises,  a  church 
or  meeting-house  for  the  public  worship  of  God,  and  also  a  suitable  dwelling-house 
for  the  clergyman,  and  a  school-house,  and  in  case  such  buildings  were  not  finished  within 
the  time,  the  estate  was  to  revert  to  the  grantors.  The  buildings  were  built  and 
finished  within  the  time.  The  deed  contained  another  and  distinct  condition  that  the 
land  thereby  conveyed  should  be  forever  thereafter  appropriated  to  the  maintenance  and 
support  of  the  public  worship  of  God,  as  therein  before  specified,  and  to  no  other  uses 
or  purposes  whatever;  otherwise  to  revert,  &c.  Held,  that  the  last  condition  was  repug- 
nant to  the  foregoing  parts  of  the  deed ;  and  as  the  former  condition  was  more  favorable 
to  the  grantees  it  should  stand,  and  the  latter  condition  be  held  void.  Canal  Bridge 
v.  Methodist  Society,  13  Met.  335.] 


Title  XIII.     Estate  on  Condition.     Ch.  I.  s.  21—25.    471 

C  should  demand  any  profits  of  the  lands,  or  enter  into  the  same 
during  the  life  of  A  or  B,  (who  were  his  father  and  mother,) 
that  then  the  estate  limited  to  C  should  cease  and  be  utterly- 
void.  It  was  resolved  that  this  was  a  condition,  and  was  void, 
being  repugnant  to  the  estate  limited,  (a) * 

22.  A  condition  annexed  to  the  creation  of  an  estate  in  fee 
simple,  that  the  tenant  shall  not  alien,  is  void  ; 2  being  repugnant 
to  the  nature  of  the  estate ;  a  power  of  alienation  being  an  inci- 
dent inseparably  annexed  to  an  estate  in  fee  simple.  But  Little- 
ton says,  if  the  condition  be  such  that  the  feoffee  shall  not  alien 
to  sueh  a  one,  naming  him,  or  to  any  of  his  heirs,  which  does 
not  take  away  all  power  of  alienation,  then  such  condition  is 
good,  (b) 

23.  A  condition  annexed  to  the  gift  of  an  estate  tail,  that  the 
donee  shall  nut  marry,  is  void ;  for  without  marriage  he  cannot 
have  an  heir  of  his  body.  It  would  be  otherwise  if  such  a  con- 
dition were  annexed  to  the  grant  of  an  estate  in  fee  simple ;  for 
in  that  case  a  collateral  heir  may  inherit,  (c) 

24.  Whatever  is  prohibited  by  law  may  be  prohibited  by  con- 
dition. Therefore,  if  a  feoffment  be  made  in  fee,  upon  condition 
that  the  feoffee  shall  not  alien  in  mortmain,  this  is  a  good  con- 
dition, because  such  alienation  is  prohibited  by  law.  Lord  Coke 
observes,  that  in  ancient  deeds  of  feoffment  in  fee  simple,  there 
was  a  clause —  Quod  licitum  sit  donatori  rem  datam  dare  vel  ven- 
dere  cui  voluerit,  exceptis  viris  religiosis  et  Jndceis.  (d) 

25.  If  a  man  makes  a  feoffment  to  a  husband  and  wife  in  fee 
(tail,)  upon  condition  that  they  shall  not  alien ;  to  some  intent 
this  is  good,  and  to  some  intent  void.3  For  to  restrain  an  aliena- 
tion by  feoffment  or  deed  is  good,  because  such  an  alienation 
is  tortious  and  voidable  ;  but  to  restrain  their  alienation  by  fine, 

(a)  Moor  V.  Savill,  2  Leon.  132. 

(6)  Lit.  s,  360,  361.     8  Terra  R.  61.     10  P.ar.  &  Cress.  433.     1  Inst.  223,  a.     Doe  v.  Pear- 
son, tit.  38,  c.  9.  (M'  Williams  v.  Nisby,  2  S.  &  R.  513.    Hawley  ».  Northampton,  8  Mass.  37.) 
(c)  Jenk.  243.     Dyer,  343,  b.  {d)  1  Inst.  223,  b. 

1  A  condition  that  the  lessee  shall  not  sell  or  dispose  of  any  wood  or  timber  off  and 
from  the  demised  premises,  without  consent  of  the  lessor,  in  writing,  is  held  good. 
Verplank  v.  Wright,  23  Wend.  500. 

2  f  A  proviso  restraining  alienation  annexed  to  a  life-estate,  is  void,  as  much  as  if 
annexed  to  an  estate  in  fee.     Rochford  v.  Hackman,  10  Eug.  Law  &  Eq.  Rep.  64.] 

3  In  the  United  States,  such  a  condition  would  probably  now  universally  be  held 
void.      Vid.  tit.  2,  ch.  2,  §  44. 


472     Title  XIII.     Estate  on  Condition,     Ch.  I.   s.  25—31. 

was  repugnant  and  void ;  f  because  it  was  lawful  and  unavoid- 
able, (a) 

26.  If  lands  be  given  in  tail,  upon  condition  that  neither  the 
tenant  in  tail,  nor  his  heirs,  shall  alien  in  fee,  or  in  tail,  or  for 

the  term  of  another's  life,  but  only  for  their  own   lives, 
6  *         such  a  *  condition  is  good ;  because  these  alienations  are 
contrary  to  the  Statute  De  Donis.  (b) 

27.  So,  if  a  person  make  a  gift  in  tail,  upon  condition  that  the 
donee  shall  not  make  a  lease  for  three  lives  or  twenty-one  years, 
according  *to  the  statute  32  Hen.  VIII.,  the  condition  is  good ; 
for  this  power  being  given  collaterally,  is  not  incident  to  the 
estate,  and  may,  therefore,  be  restrained  by  condition,  (c) 

28.  But  where  an  estate  tail  was  created  with  a  condition  that 
the  tenant  in  tail  should  not  suffer  a  common  recovery,  the  condi- 
tion was  void ;  because  the  right  to  suffer  a  common  recovery, 
was  an  incident  inseparably  annexed  to  an  estate  tail,  [previously 
to  the  recent  statute.]  (d) 

29.  Lord  Coke  says,  although  a  condition  repugnant  to  the 
nature  of  the  estate  granted  is  void ;  yet  that  in  all  such  cases  a 
bond,  by  which  the  obligor  is  restrained  from  doing  that  which 
the  nature  of  the  estate  granted  entitled  him  to  do,  will  be  good, 
Thus,  if  a  feoffee  in  fee  becomes  bound  in  a  bond  not  to  take  the 
profits  of  the  land,  or  not  to  alien  the  estate,  such  a  bond  would 
be  good.1  And  the  same  law  was  held  by  the  Court  of  Chancery 
in  the  following  case,  (e) 

30.  A  father  settled  lands  upon  his  son  in  tail,  and  took  a 
bond  from  him  that  he  would  not  dock  the  entail.  On  a  bill  to 
be  relieved  against  this  bond,  the  Court  held  it  good ;  because,  if 
the  son  had  not  agreed  to  give  the  bond,  the  father  might  have 
made  him  only  tenant  for  life,  (f) 

31.  This  doctrine  appears  extremely  questionable,  as  it  offers 
an  obvious  mode  of  restraining  a  person  from  those  rights  over 
an  estate  which  the  common  law  gives  him  ;  consequently,  of 

(a)  1  Inst.  223,  b.  (b)  Lit.  s.  362.     Tit.  2,  c.  2. 

(c)  1  Inst.  223,  b.  (d)  1  Inst.  223,  b.  Stat.  3  &  4  Will.  4,  c.  74. 

(e)  1  Inst.  206,  b.  (f)  Freeman  v.  Freeman,  2  Vera.  233. 


[  t  Before  the  Stat.  3  &  4  Will.  4,  c.  74.] 

1  This  distinction  is  now  exploded ;  for  whether  alienation  by  a  tenant  in  fee  simple 
be  restrained  by  a  condition  or  a  covenant,  it  is  equally  against  the  policy  of  law,  and 
in  either  case  void.  See  Piatt  on  Covenants,  part  6,  ch.  1  ;  The  Blackstone  Bank  v. 
Davis,  21  Pick.  42  ;  M'Williams  v.  Nisby,  2  S.  &  R.  513. 


Title  XIII.     Estate  on  Condition.     Ch.  I.  5.  31—36.     473 

frustrating  the  common  law,  as  fully  as  if  a  condition  of  this 
kind  were  allowed  to  be  inserted  in  a  conveyance  of  land  ;  and, 
in  some  cases,  it  appears  not  to  have  been  allowed. 

32.  Thus,  where  an  elder  brother  voluntarily  gave  land  to  his 
second  brother,  and  the  heirs  of  his  body,  remainder  to  a  younger 
brother  in  like  manner ;  and  made  each  of  them  enter  into  a 
statute  with  the  other,  that  he  would  not  alien,  &c. ;  but  because 
these  statutes  were,  in  substance,  to  make  a  perpetuity,  they  were 
ordered  to  be  cancelled  by  the  Court  of  Chancery,  with  the  advice 
of  Lord  Coke,  (a) 

33.  So,  where  A  settled  lands  on  B  in  tail,  with  remainder  to 
his  own  right  heirs,  and  took  a  bond  from  B  not  to  com- 
mit *  waste,  the  bond  being  put  in  suit,  it  was  decreed  to         *  7 
be  delivered  up  to  be  cancelled ;  the  Court  saying  it  was 

an  idle  bond,  (b) 

34.  It  was  formerly  held  that  if  a  lease  was  made  to  a  man 
and  his  assigns,  he  could  not  be  restrained  from  alienation ;  but 
if  the  word  assigns  was  omitted,  he  might  then  be  restrained. 
It  is,  however,  laid  down  by  Lord  Coke,  that  if  a  person  made 
a  lease  for  life,  or  years,  with  a  condition  that  the  lessee  should 
not  grant  over  his  estate,  or  let  the  lands  to  any  other  person,  it 
would  be  good;  and  this  doctrine  is  now  fully  established,  (c)  1 

35.  A  lease  was  made  for  years  upon  condition  that  the  lessee, 
his  executors  or  assigns,  should  not  alien,  without  the  assent  of 
the  lessor.  The  lessee  died  intestate ;  the  ordinary  granted  ad- 
ministration to  J.  S.,  who  assigned  the  lease  without  license.  It 
was  adjudged  that  the  condition  was  broken,  for  J.  S.  was  an 
assignee  in  law.  (d) 

36.  A  condition  annexed  to  an  estate  for  years,  that  if  the 

lessee,  his  executors  or  assigns,  did  demise  the  land  for  more  than 

from  year  to  year,  then  the  lease  should  cease,  and  be  void,  was 

held  to  be  good,  (e) 

(a)  Poole's  case,  Moo.  810.  (b)  Jervis  v.  Bruton,  2  Vera.  251. 

(e)  Hob.  170.     1  Inst.  204,  a.  223,  b.  (d)  Moore's  case,  Cro.  Eliz.  26. 

(e)  Berry  v.  Taunton,  Cro.  Eliz.  331. 

1  A  condition  that  the  lessee  shall  not  permit  more  than  one  family  to  every  one 
hundred  acres  to  reside  on  the  land,  is  good.     Jackson  v.  Brownell,  1  Johns.  267. 

[A  condition  in  a  deed  that  only  one  single  dwelling-house  shall  be  erected  on  the 
granted  land,  is  broken  by  the  erection  of  a  building  adapted  for  the  accommodation 
of  several  families,  in  distinct  tenements,  under  one  roof.  Gillis  v.  Bailey,  1  Foster, 
(N.H.)  149.] 

40* 


474     Title  XIII.     Estate  on  Condition.     Ch.  I.  5.  37—40. 

37.  A  condition  was  inserted  in  a  lease  for  years,  that  if  the 
lessee,  his  executors  or  administrators,  at  any  time,  without  the 
assent  of  the  lessor,  his  heirs  or  assigns,  did  grant,  alien,  or  assign 
the  land,  or  any  part  thereof,  that  then  it  should  be  lawful  for 
the  lessor  and  his  heirs  to  reenter.  This  was  held  to  be  a  good 
condition,  (a) 

38.  Conditions  of  this  kind  are,  however,  not  favored;  for 
they  are  held  to  affect  the  original  lessee  only,  and  not  to  extend 
to  his  assignees.  So,  that  if  a  lessee  who  is  restrained  from 
alienation,  by  a  condition  of  this  kind,  assigns  over  his  term, 
with  the  consent  of  the  lessor,  such  assignee  may  assign  to  any 
other  person,  without  further  consent,  f 

39.  The  president  and  scholars  of  a  college  at  Oxford  made  a 
lease  for  years  to  one  Bold,  with  a  proviso  that  the  lessee 

8  *  or  his  *  assigns  should  not  alien  the  premises  to  any  person 
or  persons,  without  the  special  license  of  the  lessors.  After- 
wards, the  lessors,  by  their  deed,  licensed  the  lessee  to  alien  or 
demise  the  land  to  any  person  or  persons  whatever.  The  lessee 
assigned  the  term  to  one  Tabbe,  who  devised  it  to  his  son,  who 
was  also  his  executor.  The  son  entered  generally,  died  intestate, 
and  his  administrator  assigned  the  term  to  the  defendant.  The 
president  and  scholars  entered  for  the  condition  broken.  It  was 
resolved  that  the  alienation  by  license  to  Tabbe  had  determined 
the  condition ;  so  that  no  alienation  afterwards  made  by  him 
could  be  a  breach  of  the  proviso,  or  give  the  lessors  a  right  of 
entry ;  for  the  lessors  could  not  dispense  with  an  alienation  for 
one  time,  and  that  the  same  estate  should  remain  subject  to  the 
proviso  after,  (b) 

40.  George  Fox,  lessee  for  ninety-nine  years,  by  indenture, 
rendering  rent,  covenanted  that  he  would  not  alien  or  assign  his 
term,  or  any  part  thereof,  to  any  but  his  brothers.     The  lessee 

(«)  Pennant's  case,  3  Rep.  64.     (Jackson  v.  Brownson,  7  Johns.  232.) 
(b)  Dumpor's  case,  4  Rep.  119. 

[  t  A  dispensation  of  a  condition  once  granted,  is  an  entire  dispensation,  so  that  by 
a  license  to  assign  once  given,  the  restraint  upon  alienation  ceases.  Dumpor's  case, 
ubi  supr.,  and  Brummell  v.  Mackpherson,  14  Ves.  173.  But  under  the  learning  of 
Defeasance,  a  mode  may  be  resorted  to,  by  which  the  objection  generally  made  to  give  a 
license  to  assign  can  be  obviated;  on  the  assignment  with  license,  a  deed  of  Defeasance 
should  be  executed  in  order  to  determine  the  lease  on  alienation  by  the  assignee.  See 
Shep.  Touch.  195;  2  Prest.  Con.  199,  1st  ed.  and  Appendix,  Form  7.] 


Title  XIII.     Estate  on  Condition.     Ch.  I.  s.  40—43.    475 

assigned  the  terra  to  one  of  his  brothers,  who  assigned  it  over  to 
a  stranger.  It  was  resolved, — 1.  That  this  was  a  condition,  and 
not  a  covenant.  2.  That  the  assignee  was  not  within  the  con- 
dition ;  but  might  alien  to  whom  he  pleased,  (a) 

41.  In  the  case  of  Berry  v.  Taunton,  the  condition  was  held 
to  be  broken  by  a  devise  of  the  land  to  the  lessee's  son.  But  in 
a  subsequent  case,  where  a  lessee  for  years  covenanted  with  the 
lessor  not  to  assign  over  his  term,  without  the  lessor's  consent  in 
writing;  and,  afterwards,  without  such  consent  devised  the  term 
to  J.  S. ;  it  was  said  that  this  was  not  a  breach  of  the  covenant, 
for  a  devise  was  not  a  lease,  (b) 

42.  Where  there  is  a  condition  in  a  lease  that  the  lessee  shall 
not  assign  it  over,  without  the  permission  of  the  lessor  ;  an  under- 
lease has  been  adjudged  not  to  be  within  the  condition.1 

43.  In  a  lease  for  twenty-one  years,  there  was  a  covenant  from 
the  lessee,  that  he  would  not  "  assign,!  transfer,  or  set  over,  or 
otherwise  do  or  put  away  the  said  indenture  of  demise,  or  the 
premises  thereby  demised,  or  any  part  thereof,  to  any  person  or 

(a)  Whiclicot  v.  Fox,  Cro.  Jac.  398. 

{b)  (Berry  v.  Taunton,  Cro.  El.  331.)    Ante,  s.  36.     Fox''^.  Swaan,  Styles,  483. 

1  Where  the  condition  was,  that  the  lessor  "shall  not  assign  over,  or  otherwise  part 
with  this  indenture,  or  the  premises  thereby  leased,  or  any  part  thereof,  to  any  person," 
&c. ;  these  words  were  interpreted  to  mean  an  assignment  of  the  premises  or  a  part  of 
them  for  the  whole  term  ;  and  no  forfeiture  was  incurred  by  aniRider-lease  for  a 
shorter  period.  Jackson  v.  Harrison,  17  Johns.  66,  70.  And  where  a  lease  for  life  was 
granted,  upon  condition  that  the  lessee  should  not  sell  or  dispose  of  his  estate  in  the 
premises  without  permission  of  the  lessor,  it  was  held,  that  a  lease  for  twenty  years  was 
no  forfeiture ;  the  condition  applying  only  to  an  alienation  of  his  entire  freehold  estate. 
Jackson  v.  Silvernail,  15  Johns.  278;  Jackson  v.  Brownson,  7  Johns.  227.  [A  condi- 
tion in  a  lease,  that  it  shall  be  void  if  the  lessee  assigns,  is  valid ;  but  a  lessee  under 
such  a  condition  may  associate  others  with  himself  in  the  enjoyment  of  the  term,  or 
may  make  a  sub-lease.  Hargrave  v.  King,  5  Ired.  Eq.  430.]  But  in  these  and  the 
like  cases,  there  must  be  in  the  lease  a  clause  of  reentry  for  breach  of  the  condition  ; 
otherwise  an  assignment  of  his  whole  estate  in  the  premises  is  no  forfeiture  of  the  title 
of  the  lessee,  but  only  a  ground  to  claim  damages  against  him.  Doe  v.  Phillips,  2 
Bing.  13  ;  Spear  v.  Fuller,  8  N.  Ham  p.  174  ;  Piatt  on  Covenants,  424. 

[A  condition  in  a  lease,  that  if  the  rent  shall  be  in  arrear,  or  if  the  lessee  shall  neglect 
or  fail  to  perform  and  observe  any  of  his  covenants  therein,  the  lessor  may,  while  such 
default  continues,  enter,  &c.,  applies  to  a  covenant  that  the  lessee  shall  not  occupy  the 
buildings,  or  in  any  manner  suffer  them  to  be  occupied  for  dwellings  or  for  any  unlawful 
purpose.  Such  covenant  runs  with  the  land,  and  is  binding  upon  th'e  estate  in  the  hand 
of  the  sub-tenants  of  the  lessee,  whose  use  of  the  same  for  an  unlawful  purpose  will  be  a 
breach  of  the  covenant,  and  work  a  forfeiture.     Wheeler  v.  Earle,  5  Cash.  31 .] 

[t  A  covenant  not  to  let,  set,  or  demise  the  premises  or  any  part  thereof,  for  all  or 
any  part  of  the  term,  restrains  an  assignment.     Grecnaway  v.  Adams,  12  Ves.  395.] 


476     Title  XIII.     Estate  on  Condition.     Ch.  I.  s.  43—45. 

persons  whomsoever,  without  the  license  and  consent  of  the  les- 
sor."    The  lessee  demised  the  premises  for  fourteen  years,  with- 
out any  license  ;  it  was  held  that  this  underlease  was  not 
9  *        a  *  breach,  for  the  Courts  had  always  looked  nearly  into 
these  conditions,  (a) 

44.  But  if  a  lease  contains  a  proviso  that  the  lessee,  his  ex- 
ecutors or  administrators,  shall  not  let,  set,  or  assign  over  the 
whole  or  any  part  of  the  premises,  ivithout  leave  in  writing  from 
the  lessor,  on  pain  of  forfeiting  the  lease;  an  administrator  of 
the  lessee  cannot  make  an  underlease.  Nor  would  a  parol 
license  to  let  part  of  the  premises  discharge  the  lessee  from  this 
restriction. 

45.  William  Gregson  demised  the  premises  in  question  to 
S.  Harrison,  his  executors,  &c.  for  twenty-one  years,  with  a  pro- 
viso that  in  case  the  said  Harrison,  his  executors,  or  administra- 
tors, should  at  any  time  during  the  said  term  set,  let,  or  assign 
over  the  demised  messuage,  or  any  part  thereof,  without  the 
license  and  consent  of  Gregson,  his  executors,  administrators,  or 
assigns,  for  that  purpose  first  had  and  obtained  in  writing,  the 
lease  should  be  absolutely  null  and  void ;  and  the  lessor  might 
enter.  The  lessee  entered  and  died  ;  the  defendant  took  out  ad- 
ministration to  him,  became  possessed  of  the  demised  premises, 
and  made  a  lease  of  them  for  nine  years.  The  landlord  died, 
having  devised  the  premises  to  the  lessor  of  the  plaintiff,  who 
brought  an  ejectment  to  recover  them,  as  being  forfeited  by 
the  lease  made  by  the  administrator.  The  defendant  proved 
that  Gregson,  the  lessor,  gave  liberty  by  parol  to  Harrison  the 
tenant,  to  let  the  stable,  being  part  of  the  premises  demised  :  but 
refused  to  give  the  like  liberty  to  demise  any  other  part  of  the 
premises.  (It  was  objected,  first,  that  the  covenant  only  extended 
to  an  assignment  of  the  whole  term  ;  secondly,  that  the  proviso 
not  to  assign  did  not  extend  to  persons  who  came  into  possession 
by  operation  of  law,  but  only  to  prevent  an  assignment  in  fact 
by  the  party  ;  and  thirdly,  that  the  parol  license  to  let  part  of  the 
premises  destroyed  the  whole  condition.  But  these  objections 
were  overruled,  the  last  being  met  by  the  answer  that  the  license, 
not  being  in  writing,  was  void  ;  and  judgment  was  rendered  for 
the  plaintiff.)  (b) 

(a)  Crusoe  v.  Bugby,  3  Wils.  E.  234.     2  Black.  R.  766-. 

(b)  lioe  v.  Harrison,  2  Term  K.  425.    Lloyd  v.  Crisp,  5  Taun.  249.    Doe  v.  Worsley, 


Title  XIII.     Estate  on  Condition,     Ch.  I.  s.  46—49.    477 

4G.  *  Where  a  lessee  covenanted  not  to  alien  or  transfer      *  10 
away  his  lease  ;  and  afterwards  acknowledged  a  judgment, 
on  which  the  lease  was  taken  in  execution  and  sold  ;   it  was  held 
that  this  sale  was  not  a  forfeiture  of  the  lease,  (a) 

47.  On  a  trial  in  ejectment,  a  verdict  was  found  for  the  lessor 
of  the  plaintiff,  subject  to  the  following  case :  The  lessor  of  the 
plaintiff  demised  the  premises  by  lease,  in  which  there  was  a 
covenant  that  the  lessee,  his  executors,  administrators,  or  assigns, 
should  not  let,  set,  assign,  transfer,  make  over,  barter  or  ex- 
change, or  otherwise  part  with  the  lease,  or  the  lands,  or  any 
part  thereof,  to  any  person  or  persons  whatever,  without  the  spe- 
cial license  and  consent  of  the  lessor,  his  heirs  or  assigns,  with 
a  power  of  reentry  in  case  of  alienation.     A  creditor  of 

*the  lessee  took  from  him  a  warrant  of  attorney  to  confess  *  11 
a  judgment,  upon  which  a  judgment  was  entered,  and  the 
lease  was  sold  by  execution  to  a  person  who  had  notice  of  the 
proviso.  The  lessor  brought  an  ejectment  against  the  purchaser 
of  the  lease.  Lord  Kenyon  said  there  was  a  distinction  between 
those  acts  which  the  party  does  voluntarily,  and  those  which 
pass  in  invitum;  that  judgments,  in  contemplation  of  law,  always 
pass  in  invitum;  that  this  was  not  an  alienation  within  the 
meaning  of  the  covenant ;  and  judgment  was  given  for  the 
defendant,  (b) 

48.  But  where  a  warrant  of  attorney  to  confess  a  judgment  is 
given  by  collusion,  for  the  purpose  of  enabling  a  creditor  to  take 
a  lease  in  execution,  it  will  be  deeme<MU)reach  of  a  covenant  not 
to  alien. 

49.  In  the  above  case  of  Doe  v.  Carter,  the  landlord  brought 
a  new  ejectment ;  the  jury  found  the  same  facts,  with  this  addi- 
tion, that  "  the  warrant  of  attorney  was  executed  for  the  express 
purpose  of  getting  possession  of  the  lease,"  and  the  tenant 
concurred  in  that  intention.  Lord  Kenyon  said  :  "  When  this 
case  first  came  before  the  Court,  the  rules  that  were  likely 
to  govern  it  were  so  explicitly  stated,  that  I  thought  we  should 

1  Camp.  20.  P.oe  v.  Sales,  1  Mail.  &  Selw.  297.  See  Paul  v.  Nurse,  8  Bar.  &  Cress.  486. 
Macher  v.  Foundling  Hospital,  1  Ves.  &  Beam.  191.     Doe  v.  Bliss,  4  'Faun.  735. 

(a)  12  Ves.  519. 

(h)  Doe  v.  Carter,  8  Term  P..  57.  Doe  v.  Skiggs,  cited  2  T.  K.  428.  (Jackson  v.  Corliss, 
7  Johns.  531.  Jackson  v.  Silvcrnail,  15  Johns.  278.  Jackson  v.  Kipp,  3  Wend.  230.  Doc  v. 
Hawke,  2  East,  481.) 


47S     Title  XIII.     Estate  on  Condition.     Ch.  I.  5.  49—51. 

have  heard  no  more  of  it.  The  covenant  not  to  assign,  and 
the  proviso  to  enforce  it,  were  both  legal  at  the  time ;  and 
indeed  it  was  prudent  for  the  landlord  to  take  this  care,  that  an 
improper  tenant  should  not  be  obtruded  on  him.  When  the  for- 
mer question  arose,  the  Court,  to  a  certain  degree,  relaxed  the 
severity  of  the  covenant,  and  they  then  said  there  was  no  forfeit- 
ure, because  all  that  was  stated  was,  that  a  fair  creditor  had  used 
due  diligence  to  enforce  the  payment  of  a  just  debt,  and  that  the 
lease  was  taken  from  the  tenant,  against  his  consent,  by  judg- 
ment of  law;  But  when  it  is  now  stated  that  this  step  was 
taken  for  the  express  purpose  of  getting  possession  of  the  lease, 
and  that  the  tenant  consented  to  it,  it  would  be  ridiculous  to 
suppose  that  a  court  of  justice  could  not  see  through  such  a 
flimsy  pretext  as  this.  Here  the  maxim  applies,  that  that  which 
cannot  be  done  per  directum  shall  not  be  done  per  obliquum. 
The  tenant  could  not,  by  any  assignment,  underlease,  or  mort- 
gage, have  conveyed  his  interest  to  a  creditor ;  consequently  he 
cannot  convey  it  by  an  attempt  of  this  kind.  If  the  lease  had 
been  taken  by  a  creditor,  under  an  adverse  judgment, 
12  *  *the  tenant  not  consenting,  it  would  not  have  been  a  for- 
feiture;  but  here  the  tenant  concurred  throughout,  and 
the  whole  transaction  was  performed  for  the  very  purpose  of 
enabling  the  tenant  to  convey  his  term  to  the  creditor." — Judg- 
ment was  given  for  the  plaintiff,  (a) 

50.  A  condition,  in  a  lease  for  years,  that  the  landlord  shall 
reenter  on  the  tenant's  mmimittiug-  an  act  of  bankruptcy,  where- 
upon a  commission  shaflissue,  is  good. 

51.  It  was  found  by  a  special  verdict,  that  in  a  lease  for 
twenty-one  years,  a  proviso  was  inserted,  that  if  the  lessee,  his 
executors  or  administrators,  should  commit  any  act  of  bank- 
ruptcy, within  the  intent  and  meaning  of  any  statutes  made  or 
to  be  made  in  relation  to  bankrupts,  whereon  a  commission 
should  issue,  and  he  or  they  should  be  found  or  declared  to  be  a 
bankrupt  or  bankrupts,  then  it  should  be  lawful  for  the  lessor  to 
reenter.  The  lessee  became  a  bankrupt ;  the  question  was, 
whether  the  lease  was  thereby  determined. 

Mr.  Justice  Ashurst  said,  the  general  principle  was  clear,  that 
the  landlord,  having  the  jus  disponendi,  might  annex  whatever 

(a)  Ante,  s.  47.     8  Term  R.  300. 


Title  XIII.     Estate  on  Condition.     CIi.  I.  s.  51—53.    479 

condition  he  pleased  to  his  grant,  provided  it  was  not  illegal  or 
unreasonable.  Then  was  this  proviso  contrary  to  any  express 
law,  or  so  unreasonable  that  the  law  would  pronounce  it  to  be 
void  ?  That  it  was  not  against  any  positive  law  was  admitted, 
and  no  case  had  decided  it  to  be  illegal.  It  remained  to  be 
considered  whether  it  was  void  or  unlawful,  as  against  reason 
or  public  policy.  It  did  not  appear  to  be  against  either. 
*  He  was  therefore  of  opinion  that  it  was  a  valid  proviso.  *  13 
Mr.  Justice  Buller  said,  the  case  had  been  argued  on 
general  principles  of  inconvenience,  because  the  possession  of  an 
estate  on  such  terms  enabled  the  tenants  to  hold  out  false  colors 
to  the  world ;  but  that  observation  did  not  apply  to  the  case  of 
land,  for  a  creditor  could  not  rely  on  the  bare  possession  of  the 
land  by  the  occupier,  unless  he  knew  what  sort  of  interest  he 
had  in  it.  If  he  were  desirous  of  knowing  that,  he  must  look 
into  the  lease  itself ;  there  he  would  find  the  proviso,  that  the 
tenant's  interest  would  be  forfeited  in  case  of  his  bankruptcy. 
The  stock  upon  the  farm  might  indeed  induce  a  credit ;  but  that 
would  not  govern  the  present  case.  It  was  next  urged  that  this 
was  equivalent  to  a  proviso  that  the  lease  should  not  be  seized 
under  a  commission  of  bankruptcy  ;  the  defendant's  counsel  hav- 
ing first  supposed  the  lease  to  be  granted  absolutely  for  a  certain 
term,  and  then  that  a  subsequent  proviso  was  added  to  that  effect. 
Such  a  proviso  as  that  indeed  would  be  bad,  because  it  would  be 
repugnant  to  the  grant  itself:  but  here  there  was  an  express 
limitation  that  the  lease  should  be  void,  upon  the  fact  of 
the  lessee's  becoming  a  bankrupt.  *  Adjudged  that  the  *  14 
condition  was  good,  (a) 

52.  In  many  of  the  cases  where  a  lease  may  be  avoided  on 
breach  of  a  condition,  acceptance  of  the  rent  will  make  the 
lease  good,  (b) 

53.  The  ecclesiastical  courts,  in  conformity  with  the  Roman 
law,  considered  all  conditions  in  restraint  of  marriage  as  contrary 
to  the  public  good,  and  therefore  void.  The  Court  of  Chancery 
first  adopted  the  same  doctrine  in  cases  of  legacies ;  but  always 
held  that  a  condition  annexed  to  a  devise  of  land,  or  of  any  in- 

(a)  Roc  v.  GaJliers,  2  Term  R.  133.  Doe  v.  Clarke,  8  East,  185.  See  also  Cooper  v. 
Wyatt,  5  Mad.  482,  490.  1  Swan.  481.  (2  Ad.  &  El.  317,  N.  S.  Butterfield  r.  Baker, 
5  Pick.  522.) 

(6)  Tit.  32,  c.  5. 


480     Title  XIII.     Estate  on   Condition.     Ch.  I.  s.  53—56. 

terest  arising  out  of  land,  not  to  marry  without  consent,  was  good; 1 
that  where  such  a  condition  was  precedent,  the  estate  did  not  vest 
till  the  condition  was  performed ;  and  where  it  was  subsequent, 
the  estate  would  be  divested  by  the  breach  of  the  condition. 

54.  Lord  Newport  devised  an  estate  to  his  wife,  for  her  life ; 
after  her  death,  to  his  granddaughter,  Lady  Ann  Knowles,  and 
the  heirs  of  her  body ;  provided  and  upon  condition  that  she 
married  with  the  consent  of  his  wife,  the  Earl  of  Warwick,  and 
the  Earl  of  Manchester.  In  case  she  married  without  such  con- 
sent, then  he  devised  the  premises  to  another  person.  The 
granddaughter  married  without  consent.  It  was  decreed  by  Sir 
H.  Grimstone,  M.  R.,  that  the  condition  was  only  in  terrorem, 
and  the  estate  not  forfeited.  Upon  an  appeal,  Lord  Keeper 
Bridgeman,  assisted  by  Keeling,  Vaughan,  and  Hale,  reversed 
the  decree.  Hale  said,  that  though  by  the  civil  law,  in  a  case  of 
mere  personalty,  such  a  limitation  over  would  be  void ;  yet  this, 
being  a  devise  of  lands,  was  not  to  be  governed  by  that  law.  (a) 

55.  Mr.  Cary  devised  his  estate  to  trustees  and  their  heirs,  in 
trust  for  Elizabeth  Willoughby,  for  her  life,  in  case  that  within 
three  years  after  the  testator's  death  she  married  Lord  Guilford : 
but  in  case  the  marriage  did  not  take  effect  within  that  time, 
then  he  devised  the  estate  to  Lord  Faulkland.     Upon  the  death 

of  the  testator,  proposals  of  marriage  were  made  by  Miss 
15  *  Willoughby's  *  friends  to  Lord  Guilford,  which  being  re- 
fused, she  married  Mr.  Bertie.  Lord  Somers,  assisted  by 
Justices  Holt  and  Treby,  held,  that  as  this  was  a  good  condition 
precedent,  and  not  performed,  no  relief  could  be  given  to  the 
young  lady  ;  that  the  estate  must  go  over  to  the  next  in  remain- 
der, this  being  a  condition  of  marriage,  which  was  a  thing  that 
could  not  be  valued,  (b)  It  appears  from  the  Journals,  that  this 
decree  was  reversed  in  the  House  of  Lords,  (c) 

56.  J.  S.  charged  his  real  estate  with  <£500  to  be  paid  to  his 
sister,  Alice  Heme,  within  one  month  after  her  marriage,  but  so 
nevertheless  as  she  married  with  the  approbation  of  his  brother, 
if  living;  and  in  case  she  married  without  his  consent,  the  £500 

(a)  Fry  v.  Porter,  1  Cha.  Ca.  138.    1  Mod.  300. 

(b)  Bertie  v.  Faulkland,  3  Cha.  Ca.  129.  (c)  Vol.  16,  230,  236—238,  240,  241. 

1  The  reason  was,  that  land  was  governed  by  the  rules  of  the  feudal  law,  whicli 
permitted  restraints  of  marriage  without  consent. 


Title  XIII.     Estate  on  Condition.     Ch.  I.  s.  56—58.     481 

was  not  to  be  raised.  Alice  Heme  married  in  the  lifetime  of 
her  brother,  without  his  consent.  The  question  was,  whether 
she  was  entitled  to  the  £500  or  not ;  for  it  was  said  that  this 
was  a  condition  only  in  terrorem ;  that  the  construction  of  such 
a  condition  always  had  been,  where  there  was  no  devise  over, 
that  such  a  condition  was  void ;  otherwise  where  limited  over ; 
and  here  it  was  not.  On  the  other  side,  it  was  argued  that  this 
was  a  condition  precedent,  and  nothing  arose  or  became  due  but 
upon  the  marrying  with  consent ;  that  being  a  devise  of  money 
out  of  land,  or  of  a  charge  upon  land,  it  was  to  be  considered  as 
a  devise  of  land,  and  to  be  governed  by  the  same  rules ;  then 
being  a  plain  condition  precedent,  nothing  arose.  And  for  this 
were  cited  the  two  preceding  cases.  Sir  Joseph  Jekyll  held  that 
the  charge  being  upon  land,  the  case  was  to  be  decided  by  the 
same  rule  as  if  it  had  been  a  devise  of  land ;  and  being  plainly 
a  condition  precedent,  nothing  vested  :  for  it  would  be  too  hard 
to  charge  the  land,  contrary  to  the  express  will  of  the  testator ; 
and  to  say,  the  money  should  be  raised,  when  the  testator  said  it 
should  not.     Decreed  accordingly,  (a) 

57. -The  validity  of  conditions  in  restraint  of  marriage  with- 
out consent  was  also  established,  in  the  case  of  a  trust  term, 
created  for  the  purpose  of  raising  portions  for  daughters,  by  the 
following  determination. 

58.  Sir  Thomas  Aston  settled  his  estate  to  the  use  of  himself 
for  life,  remainder  to  trustees  for  a  term  of  years,  upon  trust,  in 
case  he  should  have  no  son,  and  should  have  two  daughters, 
living  at  the  time  of  his  death,  that  the  trustees  of  the  term 
should  raise  for  such  daughters  £2000  a-piece,  if  they 
married  *  with  the  consent  of  their  mother ;  and  if  either  *  16 
of  them  died  before  marriage,  with  such  consent,  her 
portion  to  cease,  and  the  premises  to  be  discharged  ;  or  if  raised, 
then  to  be  paid  to  the  person  to  whom  the  premises  should  be- 
long. Sir  T.  Aston  gave,  by  his  will,  to  each  of  his  daughters, 
an  additional  portion  of  £2000,  subject  to  the  like  condition  as 
in  the  settlement.  He  died,  leaving  two  daughters,  who  married 
without  the  consent  of  their  mother ;  and  afterwards  filed  a  bill 
in  Chancery  against  the  trustees  of  the  term,  and  their  father's 
executors,  to  have  their  portions  raised.     It  was  answered,  that 

(a)  Reeves  v.  Heme,  5  Vin.  Ab.  343.  4  Geo.  2. 
VOL.  I.  41 


482  Title  XIII.     Estate  on   Condition.     Ch.  I.  s.  58. 

the  two  daughters  had  married  without  the  consent  of  their 
mother,  although  they  and  their  husbands  were  informed,  pre- 
vious to  their  respective  marriages,  of  the  clause  by  which  they 
were  restrained  from  marrying,  without  such  consent. 

Sir  Joseph  Jekyll  decreed  that  the  plaintiffs  were  entitled  to 
their  original  portions,  as  well  as  to  the  additional  portions  given 
by  the  will. 

Upon  an  appeal,  Lord  Hardwicke,  assisted  by  Lord  Chief 
Justice  Willes,  Lord  Chief  Justice  Lee,  and  Lord  Chief  Baron 
Comyns,  determined  that  the  daughters  of  Sir  Thomas  Aston 
were  not  entitled  to  these  portions,  in  consequence  of  their  mar- 
riage without  their  mother's  consent. 

Lord  Chief  Justice  Lee  said,  there  were  three  sorts  of 
conditions  to  be  rejected.  1.  Such  as  were  repugnant.  2. 
Such  as  were  impossible  in  their  creation.  3.  Such  as  were 
mala  in  se.  But  this  condition  of  marrying  with  consent  did 
not  come  under  any  of  those  heads ;  and  in  Fry  v.  Porter  it  was 
admitted  that  such  a  condition  was  good  in  respect  of  land. 
That  though  where  a  compensation  could  be  made,  it  was  true 
there  was  but  little  difference  between  conditions  precedent  and 
subsequent,  yet  where  a  condition  was  annexed  to  a  portion,  in 
order  to  have  a  marriage  with  consent,  there  was  an  equitable 
difference.  In  he  case  of  a  condition  subsequent,  the  thing  was 
vested ;  and  though  in  the  nature  of  a  penalty,  yet  the  intent 
should  be  clear  and  plain,  by  an  express  devise  over  to  divest ; 
but  in  the  case  of  a  condition  precedent,  for  which  there  could 
be  no  compensation,1  it  would  be  giving  an  estate  against  the 
intent  of  the  donor,  to  dispense  with  the  condition.     There  were 

1  If  the  learned  Judge  meant  to  confine  his  observation  to  that  class  of  conditions 
precedent,  for  the  breach  of  which,  from  their  nature,  no  compensation  can  be  made, 
because  there  is  no  rule  by  which  damages  can  be  computed,  the  remark  is  still  true,  as 
well  in  Equity  as  at  law.  And  if  the  observation  is  applied  to  the  vesting  of  estates,  it 
is  equally  true ;  and  in  either  view,  the  will  in  question  was  drawn  with  exquisite  skill 
and  adroitness.  But  it  is  not  universally  true,  at  this  day,  in  Equity,  that  there  can  be 
no  relief  for  breach  of  any  condition  precedent;  the  rule  being,  that,  where  the  condi- 
tion is  evidently  designed  to  secure  the  performance  of  some  collateral  act,  and  the 
nature  of  the  case  is  such  as  to  admit  of  compensation  in  money,  and  the  damages  are 
capable  of  computation,  there  the  Court  will  decree  such  compensation,  though  the  con- 
dition be  precedent.  At  least,  such  is  the  rule  in  regard  to  penalties ;  between  which, 
and  conditions  precedent  of  the  character  just  mentioned,  it  is  agreed  that  there  is  no 
distinction  in  principle.     See  post,  ch.  2,  §  29,  note. 


Title  XIII.     Estate  on  Condition.     Ch.  I.  s.  58—62.       483 

no  words  to  vest  the  portions  in  the  daughters  till  a  marriage 
with  consent ;  and  he  very  much  governed  his  opinion  by  the 
particular  penning  of  the  deed,  which  had  made  this  a  condition 
precedent ;  and  had  vested  nothing  in  the  daughters  till  a  mar- 
riage with  consent.  Upon  the  whole,  therefore,  he  was  of 
opinion  that  a  condition  to  marry  with  consent  was  a  lawful  one; 
that  it  was  annexed  to  these  portions  ;  that  it  was  a  condition 
precedent,  and  that  nothing  could  vest  in  the  plaintiffs  till  that 
condition  was  performed,  (a) 

59.  In  a  subsequent  case  a  woman  devised  in  these  words : — 
"  Provided  always,  and  it  is  my  will,  if  my  daughter  Mary 
marry  by  and  with  the  consent  of  the  trustees,  signified  in  writ- 
ing before  such  marriage  had,  then  and  not  otherwise  I  give  and 
devise  unto  my  said  daughter  Mary,  the  sum  of  .£800;"  and 
charged  all  her  real  estates  with  the  payment  of  her  debts  and 
legacies.  Mary  married  without  the  consent  of  the  trustees,  and 
died  soon  after ;  but  before  her  death,  the  trustees  declared  their 
consent  and  approbation.  On  a  bill  filed  by  Reynish  for  pay- 
ment of  this  legacy,  Lord  Hard wi eke  said,  as  Mary  married 
without  the  consent  of  the  trustees,  their  consent  or  approbation 
afterwards  was  immaterial,  because  no  subsequent  approbation 
could  amount  to  a  performance  of  the  condition,  or  dispense  with 
a  breach  of  it. 

If  the  legacy  was  to  be  considered  as  a  charge  originally  upon 
the  lands,  it  must  have  the  same  consideration  as  a  devise  of 
lands  would  have  :  in  that  case  nothing  could  be  clearer  than 
that  the  legacy  could  not  be  raised,  because  nothing  vested  be- 
fore the  condition  performed,  (b) 

*60.  The  Court  of  King's  Bench,  upon  a  case  lately       *19 
sent  out  of  Chancery,  was  of  opinion  that  a  condition,  re- 
straining a  lady  from  marrying  a  native  of  Scotland,  was  good,  (c) 

61.  Conditions  in  restraint  of  marriage,  without  consent,  are, 
however,  so  far  discouraged  by  the  English  law,  that  they  are 
construed  strictly  in  favor  of  the  persons  on  whom  such  restraints 
are  laid. 

62.  J.  S.  having  four  daughters,  A,  B,  C,  and  D,  devised  sev- 
eral parcels  of  his  estate  to  his  four  daughters ;  and,  among  other 

{a)  Harvey  i\  Aston,  1  Atk.  361.     Com.  R.  726.     Willes  R.  83.     Ante,  8.  64. 

(b)  Reynish  V.  Martin,  3  Atk.  330.  (c)  Perrin  V.  Lyon,  9  East,  170. 


484      Title  XIII.     Estate  on  Condition.     Ch.  I.  s.  62—64. 

devises,  he  gave  to  his  trustees  his  lands  in  E  and  F,  in  trust  for 
his  daughter  A,  until  her  marriage  or  death  ;  and  in  case  she 
married  with  the  consent  of  the  trustees,  then  to  her  and  her 
heirs ;  but  in  case  she  should  marry  without  their  consent,  then 
to  her  other  sisters  equally  between  them.  Three  years  after  the 
date  of  the  will,  A  married  with  the  consent  and  approbation  of 
her  father,  who  settled  upon  this  marriage  part  of  the  lands 
which  he  had  devised  to  her,  and  some  other  property.  A  year 
after  J.  S.  died,  without  having  altered  his  will ;  it  was  objected 
that  this  was  a  condition  precedent,  and  until  performance  the 
estate  could  not  vest,  and  that  equity  ought  not  to  aid  in  such  a 
case. 

Lord  Cowper  held,  that  by  the  marriage,  with  the  consent  of 
the  father,  the  condition  was  dispensed  with,  and  the  devise  be- 
came absolute ;  for  conditions  of  this  kind,  whether  precedent  or 
subsequent,  were  in  the  nature  of  penalties  or  forfeitures.  If  the 
substantial  part  and  intent  was  performed,  equity  would  supply 
small  defects  and  circumstances,  and  favor  the  devisee.  Here 
was  no  forfeiture  ;  it  was  never  the  intent  of  the  testator  that  the 
estate  should  be  taken  from  the  first  devisee,  when  it  could  not 
go  to  the  devisee  over,  and  be  left  to  descend  to  the  heir  at 
law.  (a) 

63.  A  person  devised  all  his  lands  to  one  Corny ns  and  his 
heirs,  to  the  use  of  him  and  his  heirs,  in  trust  for  payment  of 
debts ;  and  afterwards,  in  trust  for  his  granddaughter  Mary,  and 
the  heirs  of  her  body,  remainder  to  Comyns  and  his  heirs,  upon 
condition  that  he  should  marry  the  testator's  granddaughter 
Mary.  Comyns  offered  to  marry  the  lady ;  but  she  refused,  and 
soon  after  married  another  person,  (b) 

Lord  Talbot  was  of  opinion  that  this  was  a  condition  sub- 
sequent, and  that  it  was  dispensed  with  by  the  refusal  of  the 

lady,  (c) 
20*  *64.  A  person  devised  his  estate  to  trustees,  to  the  use 

of  his  son  Robert  for  life,  remainder  to  the  wife  of  such 
son  for  life,  remainder  to  the  first  and  other  sons  of  his  said  son 
in  tail ;  with  a  proviso  that  if  the  son  should  marry  any  woman 
not  having  a  competent  marriage  portion,  or  without  the  consent 
and  approbation  of  the  said  trustees,  their  heirs  and  assigns,  in 

(a)  Clerk  v.  Lucy,  5  Vin.  Ab.  87.  {b)  Robinson  v.  Comyns,  Forrest,  1G4. 

(c)  Daly  v.  Desbouverie,  2  Atk.  261. 


Title  XIII.     Estate  on  Condition.     Ch.  L  s.  64.        485 

writing",  under  their  hands  and  seals  first  had  and  obtained ;  then 
his  trustees,  immediately  after  the  decease  of  his  son,  should 
stand  seised  of  the  premises,  to  the  use  of  the  testator's  two 
daughters ;  and  he  declared  that  the  said  proviso  or  condition 
was  not  intended  by  him,  or  to  be  construed  or  taken  to  be  in 
terrorem;  but  a  condition  in  want  of  performance  whereof,  in 
every  respect,  the  estate  should  in  no  case  be  vested  in  his  son, 
nor  the  heirs  of  that  marriage.  The  son  married  a  woman  who 
had  a  competent  portion,  but  without  the  consent  or  approbation 
of  the  trustees.  Upon  the  death  of  the  son,  the  daughter  claimed 
the  estate  under  the  condition  in  the  will,  (a) 

Lord  Mansfield.  "  Conditions  in  restraint  of  marriage  are 
odious,  and  are,  therefore,  held  to  the  utmost  rigor  and  strict- 
ness ;  they  are  contrary  to  sound  policy ;  by  the  Roman  law 
they  are  all  void.  Conditions  precedent  must  previously  exist ; 
therefore,  in  these  there  can  be  no  liberality,  except  in  the  con- 
struction of  the  clauses.  But  in  cases  of  conditions  subsequent, 
it  has  been  established  by  precedents,  that  where  the  estate  is 
not  given  over,  they  shall  be  considered  as  only  in  terrorem. 
This  shows  how  odious  conditions  are ;  for  in  reason  and  argu- 
ment the  distinction  between  being  and  not  being  limited  over 
is  very  nice  ;  and  a  clause  can  carry  very  little  terror  which  is 
adjudged  to  be  of  no  effect.  If  the  estate  is  given  over,  such  a 
condition  cannot  be  got  over.  The  present  case  is  doubly  in  ter- 
rorem ;  and  made  so  by  adding  the  clause,  that  the  said  proviso 
or  condition  was  not  intended  by  him,  nor  to  be  construed  nor 
taken  to  be  in  terrorem.  In  the  case  of  Daly  v.  Clanrickarde,  in 
Chancery,  10th  December,  1733,  (b)  the  condition  was,  that  he 
should  many  with  the  consent  of  trustees  ;  if  not,  the  estate  was 
given  over.  The  trustees  were  applied  to  ;  they  offered  to  agree, 
on  a  proper  settlement  being  made.  The  marriage  was  had 
without  their  knowledge ;  but  the  settlement  being  afterwards 
made,  their  conditional  consent  was  holden  to  be  sufficient.  In 
the  case  of  Bolton  et  ux.  v.  Humphries  et  al.,  20th  Feb., 
1755,  in  Cane,  the  *  condition  was,  that  if  she  married  *  21 
with  the  consent  of  N.  H.  in  writing,  then,  &c,  and  the 
estate  was  given  over.  She  married  without  his  privity  ;  but  he 
gave   his  consent  as  soon  as  he  knew  of  the  marriage.     Lord 

(«)  Lou^  v.  Dennis,  4  Burr.  2052.     (Parsons  r.  Winslow,  6  Mass.  169.) 
(b)  2  Atk.  261.      ' 

41* 


486       Title  XIII.     Estate  on  Condition.     Ch.  I.  s.  64—65. 

Hardwicke  held  this  a  sufficient  consent,  to  entitle  her  to  the 
real  and  personal  estate,  which  was  given  her  if  she  married  with 
the  consent  and  approbation  of  N.  H.  to  be  signified  in  writing. 
I  mention  these  cases  to  show  that  the  Court  ought  not  to  make 
strides  in  favor  of  a  forfeiture.  There  can  be  but  one  true  legal 
construction  of  these  conditions  ;  and,  therefore,  it  must  be  the 
same  in  the  Court  of  Chancery,  and  all  the  other  Courts  in  West- 
minster Hall.  The  meaning  of  the  testator,  or  the  control  which 
the  law  puts  upon  his  meaning,  cannot  vary,  in  what  court 
soever  the  question  chances  to  be  determined.  In  the  present 
case  the  forfeiture  is  so  cruel  as  to  begin  with  the  innocent  issue 
of  the  offender,  who  is  to  have  it  for  his  own  life  at  all  events. 
This  testator  considered  money  as  the  only  qualification  of  a 
wife  ;  but  he  still  means  to  leave  it  to  the  judgment  of  trustees, 
whether  there  might  not  be  some  equivalent  for  money.  He 
only  meant  to  require  their  sanction,  in  case  his  son  married  a 
woman  without  a  competent  fortune.  This  is  undoubtedly  a 
condition  precedent ;  it  must  have  been  performed  before  the 
son  could  take,  before  his  interest  could  vest.  The  construction 
must  be  to  vest  the  estate,  in  case  his  son  married  a  woman  with 
a  competent  fortune,  or  had  the  consent  and  approbation  of  his 
trustees  to  marry  a  woman  without  one.  The  blunder  is  in  the 
penning  only  ;  the  meaning  is,  that  in  either  event  it  shall  vest ; 
the  performance  of  either  part  of  the  alternative  vests  the  estate. 
Here  is  no  objection  to  the  marriage,  and  one  of  the  trustees  is 
become  one  of  the  devisees  over  ;  therefore  a  cause  of  objection 
ought  to  be  shown,  otherwise  it  shall  be  considered  as  if  his  con- 
sent was  withholden  without  reason.  The  consequence  is,  that 
judgment  must  be  given  for  the  defendant."  (a) 

The  three  other  Judges  concurred  in  thinking  it  to  have  been 
the  intention  of  the  testator  that  his  son's  complying  with  either 
part  of  the  alternative  should  be  a  performance  of  the  condition  ; 
that  he  did  not  incur  a  forfeiture,  unless  he  had  broken  both 
parts  of  it ;  and  that  conditions  in  restraint  of  marriage  ought  to 
be  construed  with  the  utmost  rigor  and  strictness,  (b) 

65.  In  a  modern  case  of  personal  property,  it  was  held 
22  *       that  *  the  same  principles  of  policy  which  annul  condi- 
tions that  tend  to  a  general  restraint  of  marriage,  will 

(a)  Merry  v.  Eeeves,  1  Cases  Temp.  North.  1.     Clarke  v.  Parker,  19  Ves.  1. 
(6)  O'Callaghan  v.  Cooper,  5  Ves.  117. 


Title  XIII.     Estate  on  Condition.      Ch.  I.  s.  65.        4S7 

favor  and  support  them,  when  they  merely  prescribe  such  provi- 
dent regulations  and  sanctions  as  tend  to  protect  the  individual 
from  those  consequences  to  which  an  over-hasty,  rash,  or  precipi- 
tate match  would  probably  lead.  Therefore,  if  the  conditions 
are  only  such,  whereby  a  marriage  is  not  altogether  prohibited, 
but  only  in  part  restrained  ;  as  in  respect  of  time,  place,  or  per- 
son ;  then  such  conditions  are  good.1     An  injunction  to  ask  con- 


1  The  general  result  of  the  modem  Euglish  cases  on  the  subject  of  conditions  in 
restraint  of  marriage,  is  stated,  by  Mr.  Justice  Story,  in  the  following  terms  : — "Con- 
ditions annexed  to  gifts,  legacies,  and  devises,  in  restraint  of  marriage,  are  not  void,  if 
they  are  reasonable  in  themselves,  and  do  not  directly  or  virtually  operate  as  an  undue 
restraint  upon  the  freedom  of  marriage.  If  the  condition  is  in  restraint  of  marriage 
generally,  then,  indeed,  as  a  condition  against  public  policy,  and  the  due  economy  and 
morality  of  domestic  life,  it  will  be  held  utterly  void.  And  so,  if  the  condition  is  not 
in  restraint  of  marriage  generally,  but  still  the  prohibition  is  of  so  rigid  a  nature,  or  so 
tied  up  to  peculiar  circumstances,  that  the  party,  upon  whom  it  is  to  operate,  is  unrea- 
sonably restrained  in  the  choice  of  marriage,  it  will  fall  under  the  like  consideration. 
Thus,  where  a  legacy  was  given  to  a  daughter,  on  condition  that  she  should  not  marry 
without  consent,  or  should  not  marry  a  man  who  was  not  seised  of  an  estate  in  fee 
simple  of  the  clear  yearly  value  of  £500,  it  was  held  to  be  a  void  condition,  as  lead- 
ing to  a  probable  prohibition  of  marriage. 

"But  the  same  principles  of  public  policy,  which  annul  such  conditions,  when  they 
tend  to  a  general  restraint  of  marriage,  will  confirm  and  support  them,  when  they 
merely  prescribe  such  reasonable  and  provident  regulations  and  sanctions,  as  tend  to 
protect  the  individual  from  those  melancholy  consequences,  to  which  an  over-hasty, 
rash,  or  precipitate  match  would  probably  lead.  If  parents,  who  must  naturally  feel 
the  deepest  solicitude  for  the  welfare  of  their  children,  and  other  near  relatives  and 
friends,  who  may  well  be  presumed  to  take  a  lively  interest  in  the  happiness  of  those 
with  whom  they  are  associated  by  ties  of  kindred,  or  friendship,  could  not,  by  imposing 
some  restraints  upon  their  bounty,  guard  the  inexperience  and  ardor  of  youth  against 
the  wiles  and  delusions  of  the  crafty  and  the  corrupt,  who  would  seek  to  betray  them 
from  motives  of  the  grossest  selfishness,  the  law  would  be  lamentably  defective,  and 
would,  under  the  pretence  of  upholding  the  institution  of  marriage,  subvert  its  highest 
purposes.  It  would,  indeed,  encourage  the  young  and  the  thoughtless  to  exercise  a 
perfect  freedom  of  choice  in  marriage  ;  but  it  would  be  at  the  expense  of  all  the  best 
objects  of  the  institution,  the  preservation  of  domestic  happiness,  the  security  of  pri- 
vate virtue,  and  the  rearing  of  families  in  habits  of  sound  morality,  and  filial  obedience 
and  reverence.  Such  a  reproach  does  not  belong  to  the  common  law  in  our  day  ;  and, 
least  of  all,  can  it  be  justly  attributed  to  Courts  of  Equity. 

"  Mr.  Fonblanque  has,  with  great  propriety,  remarked  :  '  The  only  restrictions,  which 
the  law  of  England  imposes,  are  such  as  are  dictated  by  the  soundest  policy,  and  ap- 
proved by  the  purest  morality.  That  a  parent,  professing  to  be  affectionate,  shall  not 
be  unjust ;  that,  professing  to  assert  his  own  claim,  he  shall  not  disappoint  or  control 
the  claims  of  nature,  nor  obstruct  the  interests  of  the  community;  that  what  purports 
to  be  an  act  of  generosity,  shall  not  be  allowed  to  operate  as  a  temptation  to  do  that 
which  militates  against  nature,  morality,  or  sound  policy,  or  to  restrain  from  doing 
that  which  would  serve  and  promote  the  essential  interests  of  society ;  [these]  are  rules 


488         Title  XIII.     Estate  on  Condition.     Ch.  I.  s.  65. 

sent  is  lawful,  as  not  restraining  marriage  generally.  A  condition 
prescribing  due  ceremonies,  and  place  of  marriage,  is  good,  which 
only  limits  the  time  to  the  age  of  twenty-one,  or  any  other 
reasonable  age,  provided  it  be  not  used  evasively  to  restrain 
marriage  generally,  (a) 

(a)  Scott  v.  Tyler,  Hargr.  Jur.  Arg.  vol.  1,  p.  22. 


which  cannot  reasonably  be  reprobated,  as  harsh  infringements  of  private  liberty,  or 
even  reproached,  as  unnecessary  restraints  on  its  free  exercise.  On  these  considerations 
are  founded  those  distinctions  which  have,  from  time  to  time,  been  recognized  in  our 
Courts  of  Equity,  respecting  testamentary  conditions  with  reference  to  marriage.' 

"  Godolphin,  also,  has  very  correctly  laid  down  the  general  principle:  'All  conditions 
against  the  liberty  of  marriage  are  unlawful.  But,  if  the  conditions  are  only  such  as 
whereby  marriage  is  not  absolutely  prohibited,  but  only  in  part  restrained,  as  in  respect 
to  time,  place,  or  person,  then  such  conditions  are  not  utterly  to  be  rejected.'  Still, 
this  language  is  to  be  understood  with  proper  limitations ;  that  is  to  say,  that  the 
restraints  upon  marriage,  in  respect  to  time,  place,  or  person,  are  reasonably  asserted. 
For  it  is  obvious  that  restraints,  as  to  time,  place,  and  person,  may  be  so  framed  as  to 
operate  a  virtual  prohibition  upon  marriage,  or,  at  least,  upon  its  most  important  and 
valuable  objects.  As,  for  instance,  a  condition  that  a  child  should  not  marry  until  fifty 
years  of  age ;  or  should  not  marry  any  person  inhabiting  in  the  same  town,  county,  or 
state  ;  or  should  not.marry  any  person  who  was  a  clergyman,  a  physician,  or  a  lawyer, 
or  any  person,  except  of  a  particular  trade  or  employment ;  for  these  would  be  deemed 
a  mere  evasion  or  fraud  upon  the  law. 

"  On  the  other  hand,  some  provisions  against  improvident  matches,  especially  during 
infancy,  or  until  a  certain  age  of  discretion,  cannot  be  deemed  an  unreasonable  pre- 
caution for  parents  and  other  persons  to  affix  to  their  bounty.  Thus,  a  legacy  given  to 
a  daughter  to  be  paid  her  at  twenty-one  years  of  age,  if  she  does  not  marry  until  that 
period,  would  be  held  good ;  for  it  postpones  marriage  only  to  a  reasonable  age  of  dis- 
cretion. So,  a  condition,  annexed  to  a  gift  or  legacy,  that  the  party  should  not  marry 
without  the  consent  of  parents,  or  trustees,  or  other  persons  specified,  is  held  good  ;  for 
it  does  not  impose  an  unreasonable  restraint  upon  marriage  ;  and  it  must  be  presumed 
that  the  person  selected  Avill  act  with  good  faith  and  sound  discretion  in  giving  or  with- 
holding their  consent.  The  civil  law,  indeed,  seems,  on  this  point,  to  have  adopted  a 
very  different  doctrine;  holding  that  the  requirement  of  the  consent  of  a  third  person, 
and  especially  of  an  interested  person,  is  a  mere  fraud  upon  the  law. 

"  Other  cases  have  been  stated,  which  are  governed  by  the  same  principles.  Thus, 
it  has  been  said  that  a  condition  not  to  marry  a  widow,  is  no  unlawful  injunction  ;  for 
it  is  not  in  general  restraint  of  marriage.  So,  a  condition  that  a  widow  shall  not 
marry,  is  not  unlawful,  neither  is  an  annuity  during  widowhood  only.  A  condition  to 
marry,  or  not  to  marry,  Titius  or  Mrevia,  is  good.  So,  a  condition  prescribing  due 
ceremonies  and  a  due  place  of  marriage,  is  good.  And  so  any  other  conditions  of  a 
similar  nature,  if  not  used  evasively,  as  a  covert  purpose  to  restrain  marriage  generally. 

"But  Courts  of  Equity  are  not  generally  inclined  to  lend  an  indulgent  consideration 
to  conditions  in  restraint  of  marriage  :  and  on  that  account,  (being  in  no  small  degree 
influenced  by  the  doctrines  of  the  civil  and  canon  law,)  they  have  not  only  constantly 
manifested  an  anxious  desire  to  guard  against  any  abuse,  to  which  the  giving  of  one 
person  any  degree  of  control  over  another  might  eventually  lead ;  but  they  have,  on 


Title  XIII.     Estate  on  Condition.     Ch.  I.  s.  66—67.    489 

66.  A  condition  restraining  a  widow  from  a  second  marriage, 
generally  is  good.1 

67.  R.  H.  devised  certain  lands  to  his  wife  and  her  heirs  ;  but 
if  she  married  again,  then  he  devised  those  lands  to  his  daughter 
in  fee.  The  wife  married  again  ;  it  was  adjudged  that  the  estate 
should  go  over  to  the  daughter,  (a)  f 

(6)  Fitchet  r.  Adams,  2  Stra.  1128.    Jordan  v.  Holkham,  Ambl.  209. 


many  occasions,  resorted  to  subtleties  and  artificial  distinctions,  in  order  to  escape  from 
the  positive  directions  of  the  party  imposing  such  conditions."  1  Story,  Eq.  Jur. 
§  280—286. 

1  This  doctrine,  though  it  has  usually  been  laid  down  without  qualification,  was 
strenuously  combated  and  denied  by  the  learned  Mr.  Justice  Kennedy,  sitting  at  nisi 
pritts,  in  a  case  lately  before  him.  It  was  conceded  that,  if  an  estate  be  limited  to  a 
widow,  so  long  as  she  remains  unmarried,  the  limitation  is  good ;  but  it  was  said  that  a 
condition  subsequent,  to  the  like  effect,  would  be  void.  Thus,  where  a  testator  directed 
his  executors  to  pay  annually  a  certain  sum  out  of  the  income  of  his  real  estate  to  his 
wife,  for  the  support  of  herself  and  children,  in  monthly  payments,  and  the  residue  to 
be  expended  in  improving  his  farm,  until  his  son  should  arrive  at  full  age;  provided 
she  remained  his  widow  so  long;  and  in  case  she  again  married,  the  bequest  to  cease 
from  the  day  of  her  marriage  ;  it  was  held  that  the  restriction  upon  the  wife's  second 
marriage  was  void,  and  that  she  was  still  entitled  to  the  annuity,  until  the  majority  of 
the  son.  Middleton  v.  Rice,  S.  J.  C.  Pennsylvania,  1  Pa.  Law  Journ.  229,  N.  S.  In 
this  case,  the  dictum  of  Lord  Thurlow,  in  favor  of  such  restraint  upon  widows,  quoted 
by  Mr.  Justice  Story  in  1  Eq.  Jur.  §  285,  was  cited  and  disapproved.  But  the  decision 
in  this  case  was  afterwards  solemnly  overruled,  in  Commonwealth  v.  Staufter,  10  Barr. 
350 ;  in  which,  however,  the  learned  Court  went  to  the  length  of  deciding  that  in  a 
devise,  a  condition  in  general  restraint  of  marriage,  was  good.  It  seems  previously  so 
to  have  been  held,  in  principle,  by  the  same  Court,  in  Bennett  v.  Robinson,  10  Watts, 
348.  Ideo  qucere.  [See  also  McCullough's  Appeal,  12  Penn.  State  R.  (2  Jones.)  197.] 
Where  a  feme  covert  lived  apart  from  her  husband,  and  her  father  bequeathed  to  her 
an  annuity,  to  cease  if  and  while  she  should  again  live  with  her  husband,  this  restriction 
was  held  void.  Wren  v.  Bradley,  36  Leg.  Obs.  for  May  6,  1848,  p.  12,  cor.  Knight 
Bruce,  V.  C.  And  where  an  annuity  was  bequeathed  to  the  mistress  of  the  testator, 
by  whom  he  had  several  children,  but  it  was  to  be  diminished  one  half  in  case  she 
should  marry,  it  was  held  that  the  clause  of  diminution,  being  an  inducement  not  to 
marry,  was  void.     Webb  v.  Grace,  10  Jur.  1049  ;  Grace  v.  Webb,  15  Sim.  3S4,  S.  C. 

[The  law  recognizes  in  the  husband  that  species  of  interest  in  the  widowhood  of  his 
wife,  as  makes  it  lawful  for  him  to  restrain  a  second  marriage:  that  is,  that  the  provision 
which  he  has  made  shall  cease.  I  have  no  doubt  also  that,  with  respect  either  to  his 
wife  or  a  stranger,  a  testator  may  give  an  annuity  to  continue  so  long  as  she  remains 
single  or  unmarried:  but  as  to  a  person  not  a  wife,  if  he  first  gives  her  a  life  or  other 
estate,  and  then  appends  a  condition  to  defeat  that  estate  if  she  marries,  that  would  not 
be  good.     Kindersley,  V.  C,  in  Lloyd  v.  Lloyd,  10  Eng.  Law  &  Eq.  Rep.  14:3.] 

[t  For  the  law  of  legacies  to  which  conditions  are  annexed  in  restraint  of  marriage, 
see  1  Roper  on  Legacies,  687,  ed.  1828.] 


490 


CHAP.  II. 


PERFORMANCE    AND    BREACH    OF    CONDITIONS. 


Sect.  1.  Hoio   a    Condition    is    to    be 
performed. 
6.   Who  may  perform  it. 
10.  At  what  Time. 
12.  At  what  Place. 
15.    Who  arc  bound  to  perform  it. 

18.  Effect  of  its  Performance. 

19.  What  will  excuse  its  Non-per- 

formance. 
29.  Where  Equity  relieves  against 

Conditions. 
35.   Where  it  will  not  relieve. 


Sect.  39.  Entry  for  a  Condition  broken. 

46.   Who  may  enter. 

50.   Grantees  of  Reversions. 

52.  Effect  of  such  an  Entry. 

56.  Does  not  defeat  Copyhold 
Grants. 

58.  Apportionment  of  Conditions. 

60.  How  a  Condition  may  be  de- 
stroyed. 

64.  Distinction  between  a  Condi- 
tion and  a  Limitation. 


Section  1.  With  respect  to  the  performance  of  a  condition, 
Lord  Coke  says,  a  diversity  is  to  be  understood  between  condi- 
tions that  are  to  create  an  estate,  and  conditions  that  are  to  de- 
stroy an  estate.  For  a  condition  that  is  to  create  an  estate  is  to 
be  performed  by  construction  of  law  as  near  as  it  may  be,  and 
according  to  its  intent  and  meaning,  albeit  the  letter  and  words 
of  the  condition  cannot  be  performed.  But  otherwise  it  is  of  a 
condition  that  destroys  an  estate  ;  for  that  is  to  be  taken  strictly, 
unless  it  be  in  certain  special  cases,  (a) 1 

2.  Where  a  literal  performance  of  a  condition  becomes  impos- 
sible by  the  happening  of  some  subsequent  event,  it  must  then 
be  performed  as  near  the  intent  as  possible. 

3.  Thus  Littleton  says,  if  a  feoffment  be  made  upon  condition 
that  the  feoffee  shall  give  the  land  to  the  feoffor  and  his  wife,  to 
hold  to  them  and  to  the  heirs  of  their  two  bodies  engendered, 
and  for  default  of  such  issue  the  remainder  to  the  right  heirs  of 

(a)  1  Inst.  219,  b. 


i  [Merrificld  v.  Cobleigh,  4   Cash.  ITS;  Ludlow  v.  N.  T.  &  If.  R.  R.   Co.  12  Barb. 
Sup.  Ct.  440.] 


Title  XIII.     Estate  on   Condition.     Ch.  II.  .9.  3—6.     491 

the  feoffor.    In  this  case,  if  the  husband  dies,  living  the  wife,  before 

any  estate  tail  made  unto  them,  then  ought  the  feoffee  to 

*  make  an  estate  to  the  wife,  as  near  to  the  intent  of  the       *  24 

condition  as  may  be ;  that  is,  to  limit  the  land  to  the  wife 

for  life,  without  impeachment  of  waste,  remainder  to  the  heirs 

of  the  body  of  her  husband  on  her  begotten ;  remainder  to  the 

right  heirs  of  the  husband,  (a) 

4.  Where  there  is  a  condition  precedent  copulative,  the  whole 
must  be  performed  before  the  estate  can  arise. 

5.  Sir  H.  Wood,  reciting  the  intended  marriage  of  his  daughter 
with  the  Duke  of  Southampton,  limited  his  estate  to  the  use  of 
himself  for  life,  remainder  to  the  use  of  trustees  and  their  heirs, 
to  the  intent  that  in  case  the  Duke  of  Southampton  should  be 
married  to  his  daughter,  after  the  age  of  sixteen,  and  they  should 
have  issue  male,  then  the  trustees  and  their  heirs  should  ^tand 
seised  of  the  premises  in  trust  for  the  duke,  during  his  life.  The 
marriage  took  place  before  the  lady  was  sixteen ;  but  she  lived 
to  that  age,  and  died  without  issue.  The  question  was,  whether 
the  duke  was  entitled  to  an  estate  for  life.  It  was  decreed  that 
the  duke  was  entitled  to  an  estate  for  life  under  the  settlement ; 
but  this  decree  was  reversed  in  the  House  of  Lords ;  and  Lord 
Chief  Baron  Comyns  says,  the  reversal  was  founded  on  this, 
that  the  words  were  plain  and  certain  that  there  must  not  only 
be  a  marriage,  but  also  issue  male.  And  when  a  condition  copu- 
lative, consisting  of  several  branches,  is  made  precedent  to  any 
use  or  trust,  the  entire  condition  must  be  performed,  else  the  use 
or  trust  can  never  arise  or  take  place.  And  it  would  be  violence 
to  break  the  condition  into  two  parts,  which  was  but  one,  accord- 
ing to  the  plain  and  natural  sense  of  it.  (b) 

6.  With  respect  to  the  persons  who  may  perform  a  condition, 
it  is  a  general  rule  that  every  one  who  has  an  interest  in  the 
condition,  or  in  the  lands  to  which  it  relates,  may  perform  it.  As 
if  a  feoffee,  upon  condition  to  pay  at  Michaelmas  .£20,  enfeoffs 
another  person  before  that  time,  the  second  feoffee  may  perform 
the  condition,  (c) l 

(a)  Lit.  §  352. 

(b)  Wood  v.  Southampton,  2  Freem.  1S6.  Show.  Pari.  Ca.  83.  Harvey  v.  Aston,  2  Com. 
R.  732.     ( Vanliorne  v.  Dorrance,  2  Dall.  304,  317.) 

(c)  1  Inst.  207,  b.     (Simonds  v.  Simonds,  3  Met.  558.) 

1  [Wilson  v.  Wilson,  38  Maine,  (3  Heath.)  20.] 


492       Title  XIII.     Estate  on  Condition.     CJi.  II.  s.  7—10. 

7.  Where  a  time  is  appointed  for  the  performance  of  a  con- 
dition, the  right  to  perform  it  will  descend  to  the  heir.  Thus,  if 
a  feoffment  be  made  upon  condition  to  be  void,  if  the  feoffor 
pays  a  certain  sum  of  money  on  a  particular  day ;  though  the 
feoffor  should  die  before  the  day  of  payment,  yet  his  heir  may 

perform  the  condition,  (a)1 
25  *  *  8.  A  person  having  two  sons,  B  and  C,  devised  lands 

to  his  wife  for  life,  after  her  death  to  his  son  C  and  his 
heirs  ;  provided  that  if  B  did,  within  three  months  after  the 
death  of  his  wife,  pay  to  C,  his  executors  or  administrators,  the 
sum  of  .£500,  then  the  said  lands  should  go  to  B  and  his  heirs. 
The  wife  lived  several  years  ;  and  during  her  life  B  died,  leaving 
J.  D.  his  heir ;  who  not  being  heir  at  law  to  the  testator,  the 
question  was,  whether  he  could,  after  the  death  of  the  wife,  per- 
form the  condition.  And  though  it  was  objected  that  this  being 
a  condition  precedent,  and  merely  personal  in  B,  who  had  neither 
jus  in  re  nor  ad  rem,  and  could  not,  therefore,  release  or  extin- 
guish the  condition ;  consequently,  that  his  heir  could,  not  per- 
form it  after  his  death ;  yet  it  was  held,  and  so  decreed,  that  the 
possibility  of  performing  this  condition  was  an  interest  or  right, 
or  scintilla  juris,  which  vested  in  B  himself,  and  descended  to 
his  heir,  who  might  perform  it.  (b) 

9.  But  where  the  words  of  a  condition  are  general,  and  no 
time  is  specified  for  the  performance  of  it,  such  condition  must 
be  performed  by  the  parti/  to  whom  it  is  reserved,  and  not  by  his 
heir.  Thus  Littleton  says,  where  a  feoffment  is  made  upon  con- 
dition that  if  the  feoffor  pays  a  certain  sum  of  money  to  the 
feoffee,  then  it  shall  be  lawful  for  the  feoffor  and  his  heirs  to 
enter  ;  in  this  case,  if  the  feoffor  dies  before  the  payment  is  made, 
his  heir  cannot  perform  the  condition,  (c)  2 

10.  Where  a  particular  time  is  appointed  for  the  performance 
of  a  condition,  it  must  be  performed  at  or  before  that  time.     But 

(a)  Lit.  §  234.  (b)  Marks  v.  Marks,  1  Ab.  Eq.  106.  (c)  Lit.  §  337. 


i  [  The  minority  of  the  heirs  of  the  grantee  does  not  excuse  them  from  performing 
the  condition.  Cross  v.  Carson,  8  Blackf.  138.  See  also  Garrett  v.  Scouten,  3  Denio, 
334.] 

2  Perhaps  an  exception  to  this  rule  may  be  admitted,  where  the  money  was  a  debt 
due  from  the  feoffor  to  the  feoffee,  no  time  being  limited  for  the  payment,  and  the 
common-law  period  of  reasonable  time  not  having  elapsed  previous  to  the  death  of  the 
feoffor. 


Title  XIII.     Estate  on    Condition,     Ck.  II.  5.  10—14.      493 

where  no  particular  time  is  appointed,  the  person  to  whom  the 
condition  is  reserved  must,  in  some  cases,  perform  it  within  a 
reasonable  and  convenient  time ; 1  and,  in  other  cases,  he  may- 
perform  it  at  any  time  during  his  life ; 2  but,  if  he  dies  without 
performing  it,  the  right  is  not  transmitted  to  his  heir. 

11.  Thus,  if  a  feoffment  be  made  upon  condition,  that  if  the 
feoffee  does  not  pay,  &c,  it  shall  be  lawful  for  the  feoffor  to  re- 
enter ;  the  money  ought  to  be  paid  to  the  feoffor  in  convenient 
time ;  for  it  is  not  reasonable  that  the  feoffee  shall  have  the  benefit 
of  the  land,  and  not  pay  the  money.  But  if  the  condition  be, 
that  if  the  feoffor  pays,  &c.,  he  may  reenter;  the  feoffor  has  time 
to  pay  it  during  his  life,  because  the  other  has  the  profit  of  the 
land,  and  has  no  loss  by  the  nonpayment,  (a) 

12.  *  Where  a  particular  place  is  appointed  for  the  per-  *  26 
formance  of  a  condition,  the  party  who  is  to  perform  it 
must  come  to  that  place ;  for  the  person  to  whom  the  condition 
is  to  be  performed  is  not  obliged  to  accept  of  the  performance 
elsewhere;  he  may,  however,  if  he  pleases,  accept  of  the  per- 
formance at  another  place,  and  such  acceptance  will  be  good,  (b) 

13.  If  no  particidar  place  be  appointed  for  the  performance  of 
a  condition,  and  the  condition  be  that  the  feoffee  shall  pay  a 
sum  of  money ;  in  that  case,  the  feoffee  must  seek  for  the  person 
to  whom  the  money  is  to  be  paid,  if  he  be  ivithin  the  realm ;  if 
he  is  out  of  the  realm,  then  it  is  not  incumbent  on  the  feoffee  to 
seek  him,  nor  is  the  condition  broken,  (c) 

14.  Where  the  condition  is,  to  deliver  twenty  quarters  of  wheat, 
or  twenty  loads  of  timber,  or  such  like,  the  feoffor  is  not  bound  to 
carry  the  same  about,  and  seek  the  feoffee  ;  but  the  feoffor  must,. 

(a)  2  And.  73.  (b)  1  Roll.  Ab.  444. 

(c)  Lit.  §  340.    1  Inst.  210,  b. 


1  Where  a  speedy  performance  of  the  condition  is  necessary  in  order  to  give  the 
feoffor  the  full  benefit  intended  to  be  secured  to  him :  or  where  the  immediate  en- 
joyment was  obviously  his  motive  in  making  the  agreement,  the  other  party  shall 
not  have  during  his  life  to  perform  it,  but  only  a  reasonable  time.  Hamilton  v. 
Elliot,  5  S.  &  R.  375,  384 ;  Ross  v.  Tremain,  2  Met.  495.  Thus,  where  the  condi- 
tion was,  that  the  grantee  should  build  a  new  house  on  the  land,  and  suffer  the 
grantor  and  his  wife  to  dwell  in  it  during  their  lives,  and  in  the  mean  time  to  reside 
in  an  old  house  then  on  the  land  ;  it  was  held  that  the  condition  was  broken  by  his  not 
performing  within  convenient  time.  Ibid.  And  sec  Hayden  v.  S  tough  top,  5  Pick. 
528,  534. 

2  Finlay  v.  King,  3  Pet.  346,  37G. 

vol.  i.  42 


494    Title  XIII.     Estate  on  Condition.     Ch.  II.  s.  14 — 15. 

before  the  day,  go  to  the  feoffee,  and  learn  where  he  will  appoint 
to  receive  it,  and  there  it  must  be  delivered,  (a)  r 

15.  Where  an  estate  is  given  upon  condition,  the  taking  pos- 
session of  the  land  to  which  the  condition  is  annexed,  binds  to 
the  performance  of  the  condition,  even  though  such  performance 
should  be  attended  with  a  loss. 

(a)  Lit.  $  340.     1  Inst.  210,  b.    2  Leon.  260. 

1  The  law  respecting  the  place  of  performance  of  a  condition,  where  no  place  has 
been  designated,  is  the  same  as  in  cases  of  contract :  but  since  the  time  of  Lord  Coke, 
it  has  undergone  some  modifications,  so  that  the  rules,  laid  down  by  him  in  universal 
terms,  must  now  be  taken  with  considerable  qualification.  The  place  of  performance 
is  now  regarded  purely  as  a  question  of  intention,  which  is  to  be  collected  from  the 
nature  and  circumstances  of  the  case.  If  the  contract  or  condition  be  for  the  delivery 
of  goods  on  demand,  the  debtor  or  feoffor  being  the  manufacturer  or  grower  of  the 
"•oods,  or  a  dealer  in  them,  his  manufactory,  farm,  or  place  of  trade  is  understood  to 
be  the  place  intended  for  the  delivery,  and  a  tender  there  will  be  good.  But  if  the 
goods  are  portable,  such  as  cattle,  and  the  like,  and  the  time  be  certain,  but  no  designa- 
tion of  the  place,  in  the  absence  of  other  circumstances  from  which  the  intent  can  be 
collected,  the  feoffee's  or  creditor's  place  of  abode  at  the  date  of  the  deed  or  obligation, 
will  be  taken  as  the  place  of  delivery. 

"  If  the  goods  are  cumbrous,  and  the  place  of  delivery  is  not  designated,  nor  to  be 
inferred  from  collateral  circumstances,  the  presumed  intention  is,  that  they  were  to  be 
delivered  at  any  place  which  the  creditor  might  reasonably  appoint;  and,  accordingly, 
it  is  the  duty  of  the  debtor  to  call  upon  the  creditor,  if  he  is  within  the  State,  and 
request  him  to  appoint  a  place  for  the  delivery  of  the  goods.  If  the  creditor  refuses, 
or,  which  is  the  same  in  effect,  names  an  unreasonable  place,  or  avoids,  in  order  to  pre- 
vent the  notice,  the  right  of  election  is  given  to  the  debtor  :  whose  duty  it  is  to  deliver 
the  articles  at  a  reasonable  and  convenient  place,  giving  previous  notice  thereof  to  the 
creditor,  if  practicable.  And  if  the  creditor  refuses  to  accept  the  goods  when  properly 
tendered,  or  is  absent  at  the  time,  the  property,  nevertheless,  passes  to  him,  and  the 
debtor  is  forever  absolved  from  the  obligation.  2  Kent,  Comm.  507,  508,  509  ;  Co.  Lit. 
210,  b;  Aldrich  v.  Albee,  1  Greenl.  120 ;  Howard  v.  Miner,  2  Applet.  E.  325 ;  Chip- 
man  on  Contracts,  p.  51—56  :  Lamb  u.Lathrop,  13  Wend.  95.  Whether,  if  the  creditor 
is  out  of  the  State,  no  place  of  delivery  having  been  agreed  upon,  this  circumstance 
gives  to  the  debtor  the  right  of  appointing  the  place,  quare ;  and  see  Bixby  t\  Whit- 
ney, 5  Greenl.  192 ;  in  which,  however,  the  reporter's  marginal  note  seems  to  state 
the  doctrine  a  little  broader  than  the  decision  requires,  it  not  being  necessary  for  the 
plaintiff,  in  that  case,  to  aver  any  readiness  to  receive  the  goods,  at  any  place,  as  the 
contract  was  for  the  payment  of  a  sum  of  money,  in  specific  articles,  on  or  before  a  day 
certain. 

"  By  the  Roman  law,  where  the  house  or  shop  of  the  creditor  was  designated  or 
ascertained  as  the  intended  place  of  payment,  and  the  creditor  afterwards  and  be- 
fore payment,  changed  his  domicile  or  place  of  business  to  another  town  or  place, 
less  convenient  to  the  debtor,  the  creditor  was  permitted  to  require  payment  at  his 
new  domicile  or  place,  making  compensation  to  the  debtor  for  the  increased  expense 
and  trouble  thereby  caused  to  him.  But  by  the  law  of  France,  the  debtor  may  in 
such  case  require  the  creditor  to   nominate  another  place,  equally  convenient  to  the 


Title  XIII.     Estate  on  Condition.     Ch.  II.  s.  16—18.   495 

16.  An  estate  being  devised  to  Christ's  Hospital,  on  condition 
of  maintaining  six  children  from  a  particular  parish  ;  the  hospital 
bavins  taken  possession  of  the  estate,  the  rents  at  first  proved 
insufficient  to  maintain  six  children,  so  that  the  hospital  had  only 
maintained  three  ;  and  an  account  having  been  exhibited  to  the 
governors,  the  latter  had  been  satisfied.  But,  upon  filing  the 
information,  it  was  found  that  there  had  been  a  mistake  in  the 
account,  the  rents  not  having  been  expended ;  and  it  appeared 
that  ihey  had  become  sufficient  to  maintain  the  whole  number. 
Lord  Thurlow  said,  that  whether  the  rents  were  or  were  not 
sufficient  to  maintain  the  number,  the  hospital,  having  taken 
possession  of  the  estate,  was  bound  to  perform  the  condition, 
and  that  they  should  have  considered  of  that  previous  to  taking 
possession,  (a) 

17.  If  an  estate  be  made  to  a  married  woman  upon  condition, 
she  will  be  bound  to  perform  it,  because  this  does  not  charge  her 
person,  but  the  land.  So,  if  an  estate  be  made  to  an  infant,  upon 
an  express  condition,  the  infant  will  be  bound  to  perform  it. 

*  And  if  an  estate  be  made  to  a  person  in  fee,  upon  con-      *  27 
dition,  his  heir,  in  case  of  his  death,  though  he  be  within 
age,  shall  be  bound  by  the  condition,  (b) 1 

18.  When  a  condition  is  performed,  it  is  thenceforth  entirely 

(a)  Att.  Gen.  v.  Christ's  Hospital,  3  Bro.  C.  C.  165,     Att.  Gen.  v.  Andrew,  3  Yes.  633. 

(b)  1  Roll.  Ab.  421. 

debtor;  and  on  his  neglecting  so  to  do,  he  may  himself  appoint  one;  according  to 
the  rule,  that  nemo,  ulterius  facto,  prmyravari  debet.  Poth.  on  Oblig.  No.  238,  239, 
513.  Whether,  in  the  case  of  articles  not  portable,  but  cumbrous,  such  removal  of 
domicile  may,  at  common  law,  be  considered  as  a  waiver  of  the  place,  at  the  election 
of  the  debtor,  does  not  appear  to  have  been  expressly  decided.  See  Howard  v.  Miner. 
2  Applet.  It.  325,  330."  See  2  Greenl.  on  Evid.  §  609 — 611,  and  cases  there  cited.  See 
also  2  Kent,  Comm.  p.  505—509 ;  Chipman  on  Contr.  p.  24—26,  28—30,  49  ;  Poth. 
Obi.  No.  238,  239,  512,  513. 

The  tender  must  be  made  at  or  before  the  expiration  of  the  uttermost  convenient 
time  of  the  day ;  that  is,  while  it  is  light  enough  to  examine  the  goods  ;  and  ordi- 
narily before  sunset.  1  Inst.  202,  211  ;  Plowd.  172,  173;  6  Bac.  Abr.  453  ;  1  Shep. 
Touchst.  135,  136.  In  a  late  case,  however,  it  seems  to  have  been  held,  that  where 
goods  are  to  be  delivered  on  a  certain  day,  though  the  creditor  is  not  bound  to  be  at 
the  place  to  receive  them  after  sunset,  yet,  if  he  happens  to  be  there,  a  tender  to  him, 
at  any  time  before  midnight,  will  be  good.  Startup  v.  McDonald,  2  M.  &  G.  395;  fur- 
ther reported  in  6  M.  &  G.  593.  And  see  the  Law  Mag.  for  Feb.  1845,  p.  171.  The 
ultimate  derision,  however,  was  by  only  six  of  the  sixteen  Judges ;  five  dissenting 
from  the  judgment,  and  five  being  absent.     See,  as  to  tender  of  money,  tit.  15,  ch.  4. 

[!  Cross  v.  Carson,  8  Blackf.  138;  Garrett  v.  Scouten,  3  Ohio,  334.] 


496    Title  XIII.     Estate  on  Condition,     Ch.  II.  s.  18—21. 

gone  ;  and  the  thing  to  which  it  was  annexed,  becomes  absolute 
and  unconditional.  We  have  seen,  that  this  was  the  principle 
adopted  by  the  Judges,  in  the  construction  of  a  gift  to  a  man 
and  the  heirs  of  his  body  ;  and  that  the  Statute  De  Donis  Con- 
ditionalibus  took  away  that  construction,  and  declared  that  this 
kind  of  estate  should  descend  to  the  heirs  of  the  body  only  of 
the  grantee  ;  and  that  there  remained  a  reversion  in  the  grantor; 
not  a  right  of  entry  for  a  condition  broken,  (a) 

19.  There  are  several  circumstances  which  will  excuse  the  non- 
performance of  a  condition.  Thus,  where  the  performance  of  it 
becomes  impossible  by  the  act  of  God,  it  will  be  excused.1 

20.  A  person  devised  his  estate  to  his  eldest  daughter,  upon 
condition  she  would  marry  his  nephew  on  or  before  she  attained 
the  age  of  twenty-one  years.  The  nephew  died  young  ;  and  the 
daughter  never  refused,  nor  was  ever  required  to  marry  him. 
Adjudged  that  the  condition  was  not  broken,  having  become 
impossible  by  the  act  of  God.  (b) 

21.  Where  the  performance  of  a  condition  becomes  impossible 

(a)  Tit.  2,  c.  1.  (b)  Thomas  v.  Howell,  1  Salk.  170. 

1  It  must  be  impossible  in  the  nature  of  things,  so  as  not  to  admit  of  performance  by 
any  one ;  and  not  merely  impossible  to  the  party,  under  his  particular  circumstances 
at  the  time  ;  unless  his  personal  act,  and  not  another's,  is  essential  to  the  performance. 
If,  for  example,  the  life  of  the  obligor  is  essential  to  the  performance  of  the  obligation, 
from  its  nature,  so  that  it  entered  into  the  motives  of  both  parties,  constituting  part  of 
the  subject-matter  of  the  contract;  as,  if  an  eminent  painter  were  bound  to  paint  a  pic- 
ture ;  his  death  before  the  time  limited  would  excuse  the  breach  ;  for  the  obligation 
was  upon  the  tacit  inherent  condition  that  he  should  live.  But  if  otherwise,  and  the 
act  could  as  well  be  clone  by  another,  it  would  be  a  breach,  and  his  estate  would  be  lia- 
ble. A  distinction  was  taken  in  Paradine  v.  Jane,  Aleyn,  26,  between- the  case  where 
the  duty  or  obligation  was  created  by  the  law  alone,  and  where  it  was  created  only  by 
the  act  of  the  party;  it  being  held  that,  in  the  former  case,  performance  was  excused 
by  impossibility,  and  the  latter,  not,  because  he  might  have  provided  against  it.  This 
distinction  has  been  followed  in  many  subsequent  cases  ;  but  its  soundness  has  been  of 
late  much  questioned.  It  was  said  by  Dunning,  arg.  to  have  been  considered  in  Chan- 
cery, and  determined  not  to  be  law ;  3  Burr.  1 639 ;  and  it  was  so  regarded  by  McKean, 
C.  J.,  in  Pollard  v.  Shaaffer,  1  Dall.  210,  214.  It  was  evidently  deemed  erroneous  in 
principle,  by  Mr.  Justice  Story,  though,  as  he  remarked,  having  "the  countenance  of 
highly  respectable  authorities."  Story  on  Bailm.  §  36,  and  note  (2),  2d  ed. ;  10  Am. 
Jurist,  250.  Where  the  performance  becomes  legally  impossible,  by  the  compulsory 
operation  of  law,  it  is  also  excused.  Doe  v.  Rugeley,  Churchwardens,  6  Ad.  &  El. 
107,  N.  S.  ;  8Jur.  615. 

[See  also  United  States  v.  Fremont,  17  How.  (IT.  S.)  560  ;  United  States  v.  Bead- 
ing, 18  lb.  1,  as  to  what  will  excuse  from  the  performance  of  conditions  subse- 
quent.] 


Title  XIII.     Estate  on  Condition.     Ch.  II.  s.  21—24.    497 

by  the  act  of  God,  if  it  is  precedent  no  estate  will  vest ;  but  if  it 
be  subsequent,  the  estate  becomes  absolute.1  And  where  the 
performance  of  a  condition  (subsequent)  becomes  impossible  by 
the  act  of  the  person  who  created  it,  the  estate  becomes  also 
absolute,  (a)  2 

22.  Vincent  Darley  devised  his  estate,  called  Battins,  to  his 
sister,  for  life.  He  also  gave  her  the  rents  and  profits  of  all  his 
chattel  estates  for  so  many  years  as  she  should  live,  and  she 
should  choose  to  reside  at  Battins.  The  testator  afterwards  re- 
voked the  devise  of  the  estate  of  Battins ;  and  it  was  resolved 
that  the  devisee  was  entitled  to  the  benefit  of  the  chattel  estates, 
discharged  from  the  condition  of  living  at  Battins;  which  the 
revocation  had  put  out  of  her  power,  (b) 

23.  If  a  condition  consists  of  two  parts,  of  which  one  was 
impossible  to  be  performed  at  the  time  when  it  was  created,  yet 
the  other  must  be  performed ;  and  the  performance  of  the  part 
which  is  possible  will  be  sufficient,  (c) 

24.  But  where  a  condition  consists  of  two  parts,  in  the 
disjunctive,  *  and  the  party  has  an  election  which  of  them       *  28 
to  perform,  both  being  possible  at  the  time  of  creating 

the  condition  ;  but  one  of  them  becomes  after  impossible  by  the 
act  of  God,  this  will  excuse  the  performance  of  that,  and  also  of 
the  other ;  for  otherwise  the  election  would  be  'taken  away  by 
the  act  of  God.  It  was,  however  said,  in  a  subsequent  case, 
that  the  rule  and  reason  in  Laughter's  case  ought  not  to  be  taken 
so  largely  as  Lord  Coke  has  reported,  but  according  to  the  nature 
of  the  case.  \d) 3 

(«)  1  Inst.  206,  a.  218,  a.     Aislabie  v.  Rice,  3  Madd.  256.     (Wells  i:  Smith,  2  Edvv.  Ch.  R. 
78.) 
(b)  Darley  r.  Langworthy,  3  Bro.  Pari.  Ca.  359.       (c)  Wigley  v.  Blackwall,  Cro.  Eliz.  780. 
(d)  Laughter's  case,  5  Rep.  21.     1  Ld.  Raym.  279.     Da  Costa  v.  Davis,  1  Bos.  &  Pul.  242. 

1  See,  accordingly,  Merrill  v.  Emery,  10  Pick.  507  ;  People  v.  Manning,  8  Cowen, 
299  ;  Holland  v.  Bouldin,  4  Monr.  147  ;  Vanhorne  v.  Dorrance,  2  Dall.  317  ;  Taylor  v. 
Bullen,  6  Cowen,  624  ;  Finlay  v.  King,  3  Pet.  374. 

2  See  accordingly,  U.  States  v.  Arredondo,  6  Pet.  691,  745;  Whitney  v.  Spencer, 
4  Cowen,  39. 

3  The  general  rule,  laid  down  in  Laughter's  case,  mijst  be  understood  with  reference 
to  the  distinction  there  taken  ;  namely,  where  the  condition  is  for  the  benefit  of  the 
oblirjor.  In  that  case,  it  was  covenanted,  in  marriage  articles,  that  if  the  husband  and 
wife  should  sell  certain  lands  of  hers,  the  husband  should  either  purchase  other  lands, 
to  her,  of  the  same  value,  or,  should  leave  her  the  same  amount  of  money,  by  his  will. 
They  sold  the  land  ;  but  the  wife  died  before  any  other  act  was  done.    And  the  hus- 

42* 


498       Title  XIII.     Estate  on  Condition.     Ch.  II.  s.  25—28. 

25.  A  condition  may  also  be  excused  by  the  default  of  the 
person  to  whom  it  is  to  be  performed,  viz:  by  tender  and  refusal1 
It  is  also  excused, — 1.  By  his  absence  in  those  cases  where  his 
presence  is  necessary  for  the  performance  of  it.  2.  By  his  ob- 
structing or  preventing-  the  performance  of  it.2  3.  By  his  neglect- 
ing to  do  the  first  act,  if  it  be  incumbent  on  him  to  do  it.  (a)  3 

26.  Thus,  if  a  man  be  bound  to  build  a  house,  &c,  he  will  be 
excused,  if  the  person  to  whom  he  is  bound  prevents  him  from 
building  it,  either  by  any  act  of  his  own,  or  by  any  act  of  a 
stranger,  by  his  command,  (b) 

27.  The  condition  of  a  bond  was,  that  A  and  his  wife  should, 
in  Easter  term  next  after  the  date  of  the  bond,  levy  a  fine  to  B. 
Lord  Hobart  said,  that  in  this  case  B  was  bound  to  sue  out  a 
writ  of  covenant,  otherwise  the  condition  was  not  broken,  (c) 

28.  In  an  action  for  debt,  for  £500,  the  penalty  for  articles  of 
agreement,  the  declaration  stated  the  agreement  to  have  been, 
that  Shore,  the  defendant,  was  to  purchase  of  the  Duke  of  St. 
Albans,  (the  plaintiff,)  a  farm,  at  the  price  of  £2594,  which  was 
to  be  paid  at  Lady-day  then  next,  in  the  following  manner : — 
The  duke  was  to  accept  of  a  conveyance  of  certain  estates  of 

(a)  1  Roll.  Ab.  453.        (b)  Bro.  Ab.  tit.  Coven,  pi.  31.        (c)  Walrond  v.  Hill,  Hut.  48. 


band  was  held  discharged  of  the  covenant.  It  was  doubtless  on  the  ground  of  this 
distinction  that  the  Court,  in  Studholme  v.  Mandell,  1  Ld.  Raym.  279,  held  the  decision 
in  Laughter's  case  to  be  good  law.  But  where  the  condition  is  for  the  benefit  of  the 
obligee,  and  the  election  of  the  obligor  as  to  one  part  is  lost  by  inevitable  casualty,  he 
must  perform  the  other.  Thus,  where  upon  the  demise  of  a  mill,  the  lessee  cove- 
nanted to  leave  the  mill-stones  in  as  good  plight  as  he  found  them,  or  pay  such  damage 
as  A  and  B  should  assess ;  but  they  did  not  assess  any;  it  was  held  that  it  belonged  to 
the  lessee,  at  his  peril,  to  procure  the  assessment  of  damage  ;  in  default  of  which  his 
covenant  was  broken.  Studholme  v.  Mandell,  supra  ;  and  see  3  Com.  Dig.  112,  Con- 
dition, K  2. 

i  See  tit.  15,  ch.  4,  §  81,  note. 

2  [Jones  v.  Walker,  13  B.  Mon.  163.] 

3  The  party  to  whom  the  condition  is  to  be  performed  may  also  ivaive  the  forfeiture  ; 
in  which  case  the  condition  is  saved.  Chalker  v.  Chalker,  1  Conn.R.  79 ;  Enfield  Co.  v. 
Connecticut  River  Co.,  7  Conn.  R.  28,  45  ;  Willard  v.  Henry,  2  N.  Hamp.  120  ;  Bailey 
v.  Homan,  3  Bingh.  N.  C.  915.  So,  if  he  accept  performance  at  a  subsequent  day.  Ho- 
gins  v.  Arnold,  15  Pick.  259,  263;  and  see  Bond  v.  Cutler,  10  Mass.  419;  Gage  v. 
Gannett,  11  Mass.  217  ;  Jackson  v.  Crysler,  1  Johns.  Cas.  125.  But  mere  indulgence, 
or  silent  acquiescence,  is  no  waiver.  Ibid.;  Gray  v.  Blanchard,  8  Pick.  292.  [Moore- 
field  v.  Cobleigh,  4  Cash.  184.  Acts  inconsistent  with  the  claim  of  forfeiture,  are  suffi- 
cient evidence  of  such  waiver.  Andrews  if.  Senter,  32  Maine,  (2  Red.)  394  ;  Ludlow  v. 
The  N.  Y.  &  H.  R.  R.  Co.,  12  Barb.  Sup.  Ct.  440.] 


Title  XIII.     Estate  on  Condition.     Ch.  II.  s.  28.        499 

Shore,  at  the  price  of  X1820,  which  he  was  to  convey  at  the 
expense  of  the  duke ;  and  the  duke  to  make  a  good  title  to  Shore 
at  Shore's  expense  ;  and,  on  executing  the  conveyance,  the  duke 
was  to  receive  the  rest  of  the  purchase-money  ;  all  timber-trees, 
elms  and  willows,  which  were  then  upon  any  of  the  estates,  to  be 
valued,  and  the  prices  thereof  to  be  paid  by  the  respective  pur- 
chasers.    It  was  also  agreed,  that  in  case  the  duke  should  not  be 
enabled  to  make  a  good  title  to  the  estate  before  the  24th  of 
March,  the   agreement   should  be  void.     The  defendant  Shore 
pleaded  that  the  duke  was  not  capable,  ready,  and  willing  to 
make  a  good  title  to  the  said  farm ;  and  further,  that  the 
said  duke  had  cut  down  divers  trees  on  the  said  *  farm,       *  29 
which,  by  the  agreement,  were  to  be  valued,  whereby  the 
duke  disabled  himself  from  performing  his  agreement ;  for  which 
reason  the  defendant  declined  and  refused  to  carry  the  articles 
into  execution.     Replication  ;  issue  on  the  first  plea,  and  general 
demurrer  on  the  second.     Lord  Loughborough  said  it  was  clear, 
that  unless  the  plaintiff  had  done  all  that  was  incumbent  on  him 
to  do,  in  order  to  create  a  performance  by  the  defendant,  (if  he 
might  use  the  expression,)  he  was  not  entitled  to  maintain  the 
action.     If  he  had  not  set  forth  a  sufficient  title,  judgment  must 
be  against  him,  whatever  the  plea  was ;  and  if  the  plea  was  a 
good  bar,  the  same  consequence  would  follow.      It  had  been 
argued  on  the  part  of  the  plaintiff,  that  the  agreement  respecting 
the  trees  was  not  a  condition  precedent ;  and,  therefore,  a  breach 
of  that  agreement  could  not  be  pleaded  in  bar  of  the  action.     In 
support  of  this  argument,  the  case  of  Boone  v.  Eyre  was  cited ; 
but  in  that  case,  though  the  Court  of  King's  Bench  held  the  plea 
insufficient,  yet  they  laid  down  a  clear  and  well-founded  distinc- 
tion, that  where  a  covenant  went  to  the  whole  of  the  consider- 
ation, on  both  sides,  there  it  was  a  condition  precedent;  but 
where  it  did  not  go  to  the  whole,  "but  only  to  a  part,  there  it  was 
not  a  condition  precedent;  and  each  party  must  resort  to  his 
separate  remedy,  for  this  plain   reason,  because  the  damages 
might  be  unequal.     Then  the  question  was,  whether  the  cove- 
nant of  the  plaintiff  went  to  the  whole  consideration  of  that 
which  was  to  be  done  by  the  defendant.     The  duke  clearly  cov- 
enanted to  convey  the  estate  to  the  defendant,  in  which  all  the 
timber  growing  on  the  estate  was  necessarily  included.      The 


500     Title  XIII.     Estate  on  Condition.     Ch.  II.  s.  28—29. 

timber  was  not  disjoined  from  the  estate  by  a  separate  valua- 
tion ;  it  was  expressly  agreed  that  all  trees,  &c,  which  then  were 
upon  any  of  the  estates  should  be  valued  ;  but  it  was  not  to  be 
permitted  to  a  party  contracting  to  convey  land,  which  included 
the  timber,  by  his  own  act  to  alter  the  nature  of  it  between  the 
time  of  entering  into  the  contract  and  that  of  performing  it. 
There  might  be  cases  where  the  timber  growing  on  an  estate 
was  the  chief  inducement  to  a  purchase  of  that  estate ;  but  it 
was  not  necessary  to  inquire  whether  it  was  the  chief  induce- 
ment to  a  purchase  or  not ;  for  if  it  might  be  in  any  sort  a  con- 
sideration to  the  party  purchasing  to  have  the  timber,  the  party 
selling  ought  not  to  be  permitted  to  alter  the  estate  by  cutting 

down  any  of  it.     This  was  not  an  action  of  covenant 
30*       where  one  party  had  performed  his  part,  but  was  *  brought 

for  a  penalty  on  the  other  party  refusing  to  execute  a  con- 
tract ;  but  to  entitle  the  party  bringing  the  action  to  a  penalty,  he 
ought  punctually,  exactly,  and  literally,  to  complete  his  part.  The 
Court,  was,  therefore,  of  opinion,  that  the  plea  was  a  good  bar 
to  the  action  ;  and  on  this  gave  judgment  for  the  defendant,  (a) 
29.  The  Court  of  Chancery  has,  in  many  cases,  interposed  to 
moderate  the  rigor  of  the  common  law,  in  respect  to  the  breach 
of  conditions  ;  upon  the  principle  that  'equity  ought  to  relieve 
against  all  forfeitures  and  penalties,  wherever  a  compensation 
may  be  made.  It  was,  however,  formerly  held,  that  a  court  of 
equity  could  not  relieve  against  a  condition  precedent ;  but  that, 
in  the  case  of  a  condition  subsequent,  it  was  otherwise.  It  is, 
however,  now  settled,  that  the  substantial  difference  which  governs 
the  interference  of  courts  of  equity,  in  cases  of  conditions,  is  not 
whether  the  condition  be  precedent  or  subsequent,  but  whether  a 
compensation  can  or  cannot  be  made,  (b)  1 

(a)  St.  Albans  v.  Shore,  1  Hen.  Black.  270.  Boone  v.  Eyre,  1  H.  Black.  273,  n.  Hard  in 
Wadham,  1  East,  619. 

(b)  Treat.  Eq.  B.  1,  c.  6,  §  4,  5.  Hay  ward  v.  Angel,  1  Vern.  222.  (City  Bank  v.  Smith, 
3  G.  &J.265. 

1  The  doctrine  on  this  subject  is  thus  stated  by  Mr.  Justice  Story  : — "  The  general 
principle  now  adopted  is,  that,  wherever  a  penalty  is  inserted  merely  to  secure  the  per- 
formance or  enjoyment  of  a  collateral  object,  the  latter  is  considered  as  the  principal 
intent  of  the  instrument,  and  the  penalty  is  deemed  only  as  accessory,  and,  therefore, 
as  intended  only  to  secure  the  due  performance  thereof,  or  the  damage  really  incurred 
by  the  non-performance.  In  every  such  case,  the  true  test,  (generally,  if  not  univer- 
sally,) by  which  to  ascertain  whether  relief  can  or  cannot  be  had  in  Equity,  is,  to  con- 


Title  XIII.     Estate  on  Condition.     Ch.  II.  s.  30.        501 

30.  A  married  woman,  having  a  power  to  dispose  of  lands, 
devised  them  to  her  executors,  to  pay  <£500  out  of  them  to  her 
son  ;  provided  that  if  the  father  gave  not  a  sufficient  release  of 


sider  whether  compensation  can  be  made  or  not.  If  it  cannot  be  made,  then  Courts  of 
Equity  will  not  interfere.  If  it  can  be  made,  then,  if  the  penalty  is  to  secure  the  mere 
payment  of  money,  Courts  of  Equitj'  will  relieve  the  party,  upon  paying  the  principal 
and  interest.  If  it  is  to  secure  the  performance  of  some  collateral  act  or  undertaking, 
then  Courts  of  Equity  will  retain  the  bill,  and  will  direct  an  issue  of  Quantum  damnifi- 
catus ;  and,  when  the  amount  of  damages  is  ascertained  by  a  jury,  upon  the  trial  of  such 
an  issue,  they  will  grant  relief  upon  the  payment  of  such  damages. 

"The  same  doctrine  has  been  applied  by  Courts  of  Equity  to  cases  of  leases,  where  a 
forfeiture  of  the  estate,  and  an  entry  for  the  forfeiture,  is  stipulated  for  in  the  lease,  in 
case  of  the  non-payment  of  the  rent  at  the  regular  days  of  payment;  for  the  right  of 
entry  is  deemed  to  be  intended  to  be  a  mere  security  for  the  payment  of  the  rent.  It 
has  also  been  applied  to  cases  where  a  specific  performance  of  contracts  is  sought  to.be 
enforced,  and  yet  the  party  has  not  punctually  performed  the  contract  on  his  own  part, 
but  has  been  in  default.  And,  in  cases  of  this  sort,  admitting  of  compensation,  there 
is  rarely  any  distinction  allowed  in  Courts  of  Equity  between  conditions  precedent  and 
conditions  subsequent;  for  it  has  been  truly  said,  that,  although  the  distinction  between 
conditions  precedent  and  conditions  subsequent  is  known  and  often  mentioned  in  Courts 
of  Equity,  yet  the  prevailing,  though  not  the  universal  distinction  as  to  conditions  there 
is  between  cases  where  compensation  can  be  made,  and  cases  where  it  cannot  be  made 
without  any  regard  to  the  fact,  whether  they  are  conditions  precedent  or  conditions  sub- 
sequent." 

The  learned  author  adds,  in  a  note, — "  There  is  some  diversity  in  the  cases  upon  the 
subject  of  conditions  precedent  and  conditions  subsequent,  as  acted  upon  in  Chancery. 
Thus,  for  example,  it  was  said  in  Popham  v.  Bampfeild,  1  Vern.  83,  that  there  was  a 
difference  between  conditions  precedent  and  conditions  subsequent; — '  For  precedent 
conditions  must  be  literally  performed  ;  and  this  Court  (a'  Court  of  Equity)  will  never 
vest  an  estate,  where,  by  reason  of  a  condition  precedent,  it  will  not  vest  at  law.  But 
of  conditions  subsequent,  which  are  to  divest  an  estate,  it  is  otherwise.  Yet,  of  con- 
ditions subsequent,  there  is  this  difference  to  be  observed  ;  for,  against  all  conditions, 
subsequent,  this  Court  (of  Equity)  cannot,  nor  ought,  to  relieve.  When  the  Court  can, 
in  any  case,  compensate  the  party  in  damages,  for  the  non-precise  performance  of  the 
condition,  there  it  is  just  and  equitable  to  relieve.'  In  the  case  of  Hayward  v.  Angell, 
1  Vern.  R.  223,  the  Lord  Keeper  said, — '  In  all  cases,  where  the  matter  lies  in  compen- 
sation, be  the  condition  precedent  or  subsequent,  he  thought  there  ought  to  be  relief.' 
In  Cary  v.  Bertie,  2  Vern.  R.  339,  Lord  Holt,  assisting  the  Lord  Chancellor,  said, — 
'  In  cases  of  conditions  subsequent,  that  are  to  defeat  an  estate,  these  are  not  favored 
in  law ;  and,  if  the  condition  becomes  impossible  by  the  act  of  God,  the  estate  shall  not 
be  defeated  or  forfeited.  And  a  Court  of  Equity  may  relieve  to  prevent  the  divesting 
of  an  estate ;  but  cannot  relieve  to  give  an  estate,  that  never  vested.'  The  Lord  Chan- 
cellor, in  the  same  case,  said, — '  As  the  condition  was  the  performance  of  a  collateral 
act,  and  did  not  lie  in  compensation,  he  did  not  see  any  thing  that  could  be  a  just 
ground  for  relief  in  a  Court  of  Equity.'  Id.  p.  344;  S.  C.  1  Salk.  231.  We  shall 
presently  see  that  in  some  cases  of  forfeiture  for  breach  of  covenant,  Courts  of  Equity 
will  not  grant  relief  upon  the  principle,  that  compensation  can  be  made.  In  Wallis  v. 
Crimes,  1  Ch.  Cas.  90,  the  Lord  Keeper  decided,  that,  wherever  a  condition  precedent 


502    Title  XIII.     Estate  on   Condition.     Ch.  II.  s.  30—33. 

certain  goods  to  her  executors,  then  the  devise  of  the  £500 
should  be  void,  and  it  should  go  to  the  executors.  After  the 
death  of  the  testatrix,  a  release  was  tendered  to  the  father,  which 
he  refused  to  execute.  On  a  bill  brought  by  the  son  against  the 
executors  and  the  father,  the  father  answered  that  he  was  then 
ready  to  release,  though  for  some  reasons  he  had  before  refused ; 
whereupon  the  Court  decreed  the  payment  of  the  <£500 ;  and 
said  it  was  the  standing  rule  that  a  forfeiture  should  not  bind, 
where  a  thing  might  be  done  after,  or  a  compensation  made  for 
it.  (a) 

31.  A  person  devised  lands  to  J.  B.,  upon  condition  to  pay 
.£20,000  to  his  heir  at  law,  viz.,  £1000  per  annum  for  the  first 
sixteen  years,  and  £2000  per  annum  after,  till  the  whole  should 
be  paid.  The  heir  entered  for  the  non-payment  of  one  of  the 
sums  of  £1000.  Decreed  that  J.  B.  should  be  relieved  upon 
payment  of  the  £1000,  with  interest ;  the  Court  declaring,  that 
wherever  it  could  give  satisfaction  or  compensation  for  the  breach 
of  a  condition,  it  would  relieve,  (b) 

32.  A  person  having  three  daughters,  devised  lands  to  his  eldest 
daughter,  upon  condition  that  she  would,  within  six  months  after 
the  testator's  death,  pay  certain  sums  to  her  two  sisters  ;  if  she 

failed,  then  he  devised  the  lands  to  his  second  daughter, 
31  *       on  *  the  like  condition.     The  Court  said,  it  would  enlarge 

the  time  of  payment,  though  the  lands  were  devised  over  ; 
and  that  in  all  cases  which  lay  in  compensation,  the  Court  might 
dispense  with  the  time,  even  in  the  case  of  a  condition  prece- 
dent, (c) 

33.  A  person  devised  lands  to  his  kinsman  J.  S.,  paying 
£1000  a-piece  to  his  two  daughters,  who  were  his  heirs  at  law. 
J.  S.  made  default,  and  the  daughters  recovered  the  lands  in  eject- 

(n)  Cage  v.  Russell,  2  Vent.  352.  (b)  Grimstone  v.  Bruce,  1  Salk.  156. 

(c)  Woodman  v.  Blake,  2  Vern.  222. 


was  in  the  nature  of  a  penalty,  Equity  ought  to  relieve.  See  also  Bland  v.  Middleton, 
2  Ch.  Cas.  1."  See  2  Story  on  Eq.  Jur.  §  1314,  1315.  The  entire  subject  of  relief  in 
Equity  against  penalties  and  forfeitures  is  fully  treated  by  this  learned  author  in  his 
34th  chapter,  from  which  the  above  passages  are  extracted.  See  also  City  Bank  v. 
Smith,  3  Gill  &  Johns.  265  ;  Scott  v.  Tyler,  2  Bro.  C.  C.  431,  and  the  argument  of 
Mr.  Hargrave  in  that  case,  p.  450 — 465;  Livingston  v.  Tompkins,  4  Johns.  Ch.  R.  415, 
431 ;  Bacon  v.  Huntington,  14  Conn.  E.  92  ;  Wells  v.  Smith,  2  Edw.  75  ;  Popham  v. 
Bampfeild,  1  Vern.  83 ;   Walker  v.  Wheeler,  2  Conn.  R.  299. 


Title  XIII.     Estate  on  Condition.     Ch.  II.  s.  33—36.    503 

ment.  It  was  decreed  that  the  heir  of  J.  S.  should  be  relieved 
on  payment  of  the  principal  and  interest,  though  in  favor  of  a 
volunteer,  and  to  the  disherison  of  the  heir,  (a) 

34.  [A  familiar  instance  of  relief  against  the  consequences  of 
a  breach  of  a  condition,  occurs  where  a  lessee  neglects  to  pay 
his  rent  at  the  time  specified  in  his  lease,  and  a  right  of  reentry 
to  avoid  the  lease,  accrues  to  the  lessor.  Courts  both  of  law  f 
and  equity,  J  have  in  such  cases  interfered  in  the  tenant's  behalf, 
upon  his  satisfying  his  landlord  his  rent,  and  any  damage  he  may 
have  sustained  by  the  tenant's  neglect.]  (b)} 

35.  If  there  can  be  no  compensation  in  damages,  a  Court  of 
Equity  will  not  relieve.  2  As  where  a  person  made  a  lease,  with  a 
condition  of  reentry  if  the  lessee  aliened,  or  assigned  it  without 
license  ;  the  lessee  assigned  it  without  license ;  and  the  Court 
of  Chancery  held  this  was  a  forfeiture,  against  which  it  could 
not  relieve,  because  it  was  unknown  what  should  be  the  measure 
of  the  damages ;  for  the  Court  never  relieved,  but  in  those  cases 
where  it  could  give  some  compensation,  and  where  there  was 
some  rule  to  be  the  measure  of  such  damages,  to  avoid  being 
arbitrary,  (c)  3 

36.  [So  also  the  Court  of  Chancery  will  not  relieve  against  a 
forfeiture  incurred  by  the  tenant's  neglecting  to  repair,§  or  to 
keep  the  premises  insured, ]|   or  by  making  a  way  through  the 

(a)  Barnardiston  v.  Fane,  2  Vern.  366.  (b)  (Bowser  v.  Colby,  1  Hare,  109.) 

(c)  Wafer  v.  Mocato,  9  Mod.  112.     Hill  v.  Barclay,  16  Ves.  402.     And  see  Northcote  v. 
Duke,  2  Eden,  319,  and  note.    Ambl.  511,    (Elliott  v.  Turner.  13  Sim.  477.) 


1  [Atkins  v.  Chilson,  11  Met.  112;  Sanborn  v.  Woodman,  5  Cush.  36.] 

2  Though  the  nature  of  the  case  be  such  as  to  afford  no  rule  for  the  assessment  of 
damages  by  way  of  compensation,  yet  if  the  parties  have  themselves  prospectively 
liquidated  the  damages,  relief  may  be  had.  As  to  the  distinction  between  liquidated 
damages  and  penalties,  see  2  Greenl.  Evid.  §  257 — 259  ;  2  Story,  Eq.  Jur.  §  1318 ; 
2  Poth.   Obi.  by  Evans,  n.  12. 

3  Lord  Eldon  seemed  to  think  that  relief  could  be  had  only  where  the  breach  con- 
sisted in  the  non-payment  of  money.     Hill  v.  Barclay,  18  Ves.  64. 

t  [Phillips  v.  Doolittle,  8  Mod.  345  ;  Smith  v.  Parks,  10  lb.  383  ;  Goodtitle  v.  Hold- 
fast, Str.  900;  Anon.  1  Wils.  75;  Goodright  v.  Noright,  Sir  W.  Bl.  746;  Pure  v. 
Sturdy,  Bull.  N.  P.  97.     See  also  Doe  v.  Eoe,  3  Taunt.  402.] 

|  [Wadman  v.  Calcraft,  10  Ves.  67  ;  Davis  v.  West,  12  lb.  475  ;  Hill  v.  Barclay, 
16  Ves.  405  ;  Lovat  v.  Lord  Ranelagh,  3  Ves.  &  Bea.  24.] 

§  [Hill  v.  Barclay,  ubi  supra,  18  Ves.  56.] 

II  [Rolfe  v.  Harris,  2  Price,  206,  n;  Reynolds  v.  Pitt,  lb.  212,  n;  White  v.  Warner, 
2  Mer.  459  ;  Green  v.  Bridges,  4  Sim.  96.] 


504      Title  XIII.     Estate  on  Condition.     Ch.  II.  s.  36—39. 

demised  premises,  contrary  to  an  expressed  covenant ;  f 
32  *       or  by  adopting  *  a  course  of  husbandry  prohibited  by  a 

covenant  in  his  lease.J  or  by  exercising  a  forbidden  trade 
on  the  premises  demised.]  § 

37.  Where  there  is  no  ground  for  the  interference  of  a  Court 
of  Equity  to  relieve  against  a  condition,  and  an  estate  is  limited, 
defeasible  upon  the  breach  of  a  condition,  the  Court  of  Chancery 
will  decree  a  reconveyance. 

38.  A  proviso  was  inserted  in  a  marriage  settlement,  that  if 
the  intended  marriage  took  effect,  and  the  intended  wife  should 
not,  when  she  came  of  age,  by  fine  or  otherwise,  join  in  charging 
an  estate  to  which  she  was  entitled  with  £2000,  then  the  set- 
tlement was  to  be  void.  The  marriage  took  effect ;  but  the  wife 
finding,  when  she  came  of  age,  that  her  own  estate  was  of  greater 
value  than  the  jointure,  she  and  her  husband  refused  to  join  in 
charging  it  with  .£2000.  Whereupon  a  bill  was  brought  to  have 
a  conveyance,  which  was  decreed ;  and  an  account  of  the  rents 
and  profits  directed  from  the  time  of  the  refusal ;  but  no  costs 
on  either  side  ;  for  this  was  not  a  condition  precedent,  but  sub- 
sequent, to  the  vesting  of  the  estates  in  the  defendant. (a) 

39.  Upon  the  breach  of  a  condition,  the  feoffor  or  grantor,  or 
his  hen,  becomes  entitled  to  the  estate  to  which  such  condition 
was  annexed ;  and  in  the  case  of  freehold  estates,  the  only  mode  by 
which  advantage  can  be  taken  of  the  breach  of  a  condition  is  by 
entry}  or,  if  that  should  be  impossible,  then  by  claim ;  because 

(a)  Hunt  v.  Hunt,  Gilb.  E.  43.     Prec.  in  Cha,  387. 

t  [Descarlett  v.  Dennett,  9  Mod.  22.] 

J  [Lovat  v.  Lord  Eanelagh,  supra.] 

§  [Macher  v.  Foundling  Hospital,  1  Ves.  &  Bea.  188-1 

1  If  the  condition  is  for  the  payment  of  rent,  remedy  may  be  had,  in  some  of  the 
United  States,  by  ejectment,  without  entry.  See  post,  tit.  28,  ch.  1.  And  in  some 
States,  this  remedy  would  seem  to  be  applied  for  the  breach  of  any  condition.  Walker's 
Introd.  297  ;  Sperry  v.  Pond,  5  Ohio,  B.  387.  The  service  by  the  lessor  upon  the  les- 
see, of  a  declaration  in  ejectment  for  the  demised  premises,  for  a  forfeiture,  operates  as 
a  final  election  by  the  lessor  to  determine  the  term ;  so  that  he  cannot  afterwards 
(though  judgment  has  not  been  rendered  in  the  ejectment)  sue  for  rent  due,  or  cov- 
enants broken,  after  service  of  the  declaration.  Jones  v.  Carter,  15  M.  &  W.  718.  In 
Massachusetts,  Kev.  St.  ch.  101,  §  1—4,  and  in  Maine,  Kev.  St.  ch.  145,  §  3—7,  where 
freehold  estates  are  recovered  by  writ  of  entry  upon  disseisin,  proof  of  a  right  of  entry 
is  to  be  received  as  sufficient  proof  of  seisin  in  the  demandant.  But  whether  this  pro- 
vision will  dispense  with  an  actual  entry  for  breach  of  condition,  quare.  [After  the  breach 
of  a  condition  subsequent,  an  entry  is  necessary  to  avoid  the  estate  and  cause  it  to  re- 


Title  XIII.  Estate  on  Condition.   Ch.  II.  s.  39—42.       505 

the  solemnity  of  a  feoffment,  with  livery  of  seisin,  can  only  be 
defeated  by  an  act  of  equal  notoriety.  But  an  entry  by  a  stranger, 
on  behalf  of  the  person  entitled  to  enter,  is  good  without  any 
authority ;  provided  it  be  assented  to  afterwards  by  the  person 
entitled,  (a) 

40.  In  the  case  of  advowsons,  rents,  commons,  remainders,  and 
reversions,  where  no  entry  can  be  made,  there  must  be  a  claim ; 
which  must  be  made  at  the  church  or  upon  the  land.  (b~) 

41.  In  all  cases  where  the  crown  is  entitled  to  land  upon  the 
breach  of  a  condition,  an  office  countervails  an  entry,  (c)  1 

42.  Littleton  has  stated  the  following  case,  in  which  no  entry 
is  necessary :  —  Where  land  is  granted  to  a  man  for  term  of  five 
years,  with  a  condition,  that  if  he  pays  the  grantor  within  the 

first  two  years  forty  marks,  that  then  he  shall  have  the  fee,  or 
otherwise  but  for  five  years ;  and  livery  of  seisin  is  made 
by  *  force  of  the    grant.     Now   the   grantee   has   a   fee       *  33 
simple   conditional;  and   if  he   does   not  pay   the   forty 

(a)  1  Inst.  218,  a.     Fitcliet  v.  Adams,  2  Stra.  1128. 
(6)  1  Inst.  218,  a.  (c)  Poph.  53. 

vest  in  the  grantor  or  in  one  who  has  succeeded  to  his  rights.  Tallman  v.  Snow,  35 
Maine,  (5  Red.)  342.  The  entry  must  be  actual,  and  must  be  made  purposely  for  the 
breach  of  the  condition.  Thus,  where  a  person  entitled  to  enter  after  a  breach  of  con- 
dition went  upon  the  land  and  demanded  seisin  and  possession,  but  made  no  claim  of 
entry  for  the  breach  of  condition,  the  entry  was  held  ineffective  and  insufficient  to  lay 
a  foundation  for  a  recovery  in  ejectment.  Bowen  v.  Bowen,  18  Conn.  535.  Where 
there  are  several  breaches  of  the  condition,  an  entry  made  solely  under  a  declaration  of 
the  general  purpose  to  revest  the  estate  by  reason  of  condition  broken,  and  without  sug- 
gesting any  particular  breach  as  the  occasion  and  purpose,  of  the  entry,  is  good  and 
effectual  as  to  all  the  breaches  of  condition.  But  where  a  party  making  the  entry 
superadds  to  it  a  declaration  of  the  specific  grounds  of  the  alleged  forfeiture  and  cause 
of  entry,  he  is  bound  by  his  specification  and  restricted  to  the  breach  alleged  as  the  occa- 
sion of  his  entry.  An  estate  upon  condition  is  not  defeated,  as  a  matter  of  course,  upon 
breach  of  the  condition.  It  is  wholly  at  the  election  of  the  party  to  whom  the  estate  re- 
verts, whether  he  will  avail  himself  of  the  breach  as  a  cause  of  forfeiture.  He  may 
decline  taking  advantage  of  it,  and  if  so,  the  estate  is  not  defeated.  Now  if  he  may 
wholly  waive  the  right  to  forfeiture  by  declining  to  enter  for  a  breach,  it  would  seem 
to  follow,  that  if  there  are  two  or  more  causes  of  forfeiture,  an  entry  particularly  lim- 
ited to  one  cause  would  be  equivalent  to  declining  to  avail  himself  of  his  right  of  entry 
for  other  and  distinct  causes.  Atkins  v.  Chilson,  9  Met.  62.  And  where  there  has  been 
a  breach  of  condition,  so  as  to  entitle  the  Commonwealth  to  recover  possession,  the  Com- 
monwealth can  make  no  valid  conveyance  of  the  estate  without  first  recovering  posses- 
sion thereof.  Thompson  v.  Bright,  1  Cush.  420.]  And  see  Chalker  v.  Chalker,  1  Conn. 
R.  79,  87—90. 

i  Plowd.  243;  Bro.  Abr.  Condition,  pi.  125;  The  People  v.  Brown,  4  Caines,  416, 
426. 

vol.  i.  43 


506     Title  XIII.     Estate  on  Condition.     Ch,  II.  s.  42—45. 

marks  within  the  time,  then  the  fee  and  the  freehold  shall  be 
adjudged  to  be  in  the  grantor,  without  entry  or  claim,  because 
the  grantor  cannot  immediately  enter,  for  the  grantee  is  still 
entitled  to  hold  the  lands  for  three  years.  And  Lord  Coke  ob- 
serves on  this  case,  that  "  seeing  by  construction  of  law  the 
freehold  and  inheritance  passeth  maintenant  out  of  the  lessor ; 
by  the  like  construction  the  freehold  and  inheritance,  by  the 
default  of  the  lessee,  shall  be  revested  in  the  lessor  without  entry 
or  claim."  (a) 

43.  Lord  Coke  has  also  stated  two  cases  where  no  entry  is 
necessary : — 1.  If  a  person  grants  a  rent-charge  out  of  his  lands, 
upon  condition ;  there,  if  the  condition  is  broken,  the  rent  will 
be  extinct,  because,  the  grantor,  being  in  possession,  need  not 
make  a  claim  upon  his  own  land  ;  therefore  the  law  will  adjudge 
the  rent  void,  without  any  claim.1  2.  If  a  man  makes  a  feoffment 
in  fee,  upon  condition  that  the  feoffee  shall  pay  £20  on  a  partic- 
ular day,  and  before  the  day  the  feoffee  lets  the  land  to  the 
feoffor  for  years,  reserving  rent,  and  afterwards  fails  of  payment, 
the  feoffor  shall  retain  the  land ;  for  he  could  not  enter,  being 
himself  in  possession,  (b) 

44.  There  is,  however,  a  distinction  between  a  condition  that 
requires  an  entry,  and  a  limitation  that  determines  the  estate 
ipso  facto  without  an  entry ;  of  which  an  account  will  be  given 
hereafter,  (c) 

45.  Where  an  estate  for  years  determines  by  a  condition,  no 
entry  is  necessary.     Thus  if  a  person  demises  lands  for  years, 

(a)  Lit.  §  350.     1  Inst.  218,  a.  (b)  Idem.  (c)  Infra,  §  64. 

1  So,  wherever  the  grantor  is  already  in  actual  possession,  no  formal  entry  is  neces- 
sary. Lincoln  &  Kennebec  Bank  v.  Drummond,  5  Mass.  321  ;  Hamilton  v.  Elliott,  5 
S.  &  R.  375.  So,  if  the  parties  are  jointly  in  actual  possession.  But  in  such  cases 
there  must  be  a  claim  of  exclusive  title  for  the  breach  of  condition  ;  and  this  must  be 
by  such  acts  or  words  as  will  with  distinctness  admonish  the  gi-antee  that  thenceforth 
the  possession  will  be  retained  for  condition  broken,  and  that  the  breach  is  not  waived. 
Complaints  alone  are  not  sufficient.     Willard  v.  Henry,  2  N.  Hamp.  120. 

[Where  the  party  that  is  entitled  to  enter,  is  in  possession  at  the  time  of  the  breach, 
he  is  presumed  to  hold  for  the  purpose  of  enforcing  the  forfeiture.  Andrews  v.  Senter, 
32  Maine,  (2  Bed.)  394.  But  where  A  conveys  to  B  by  deed  an  estate  upon  condition, 
and  at  the  same  time  B  mortgages  the  premises  to  A,  who  on  the  non-payment  of  the 
mortgage  debt  at  maturity,  enters  for  foreclosure,  and  while  he  is  in  possession  under 
such  entry,  a  breach  of  the  condition  in  his  deed  to  B  occurs,  such  entry  and  possession, 
without  further  notice  or  act  on  the  part  of  A,  will  not  be  sufficient  to  divest  absolutely 
the  estate  of  B  for  such  breach  of  condition.     Stone  v.  Ellis,  9  Cush.  95.] 


Title  XIII.     Estate  on  Condition.     Ch.  II.  s.  45 — 48.     507 

upon  condition  that  if  the  lessor  pays  to  the  lessee  ,£10,  his 
estate  shall  cease.  There,  if  the  lessor  performs  the  condition, 
the  estate  of  the  lessee  is  immediately  determined  without  any 

entry,  (a) 

46.  It  has  been  stated  that  the  benefit  of  a  condition  can  only 
be  reserved  to  the  feoffor,  donor,  or  lessor,  and  their  heirs.1  And 
it  is  a  rule  of  the  common  laiv  that  no  one  can  take  advantage  of 
the  breach  of  a  condition  expressed,  but  parties  and  privies  in 
right  and  representation,  as  heirs,  executors  or  administrators  of 
natural  persons,  and  the  successors  of  bodies  politic.  So  that 
neither  privies  nor  assignees  in  law,  as  lords  by  escheat,  nor 
privies  in  estate,  as  persons  in  remainder  and  reversion,  could 
formerly  enter  for  such  a  condition  broken,  (b) 

*47.  It  should,  however,  be  observed,  that  in  the  case  *34 
of  conditions  implied,  or  in  law,  privies  and  assignees  in 
law  may  enter  for  a  condition  broken.  Thus  Lord  Coke  says,  if 
a  man  makes  a  lease  for  life,  there  is  a  condition  in  law  annexed 
to  it,  that  if  the  lessee  creates  a  greater  estate,  &c,  then  the 
lessor  may  enter.  Of  this  and  the  like  conditions  in  law,  which 
give  an  entry  to  the  lessor,  not  only  the  lessor  himself  and  his 
heirs  may  take  the  benefit,  but  also  his  assignee,  and  the  lord  by 
escheat,  (c) 

48.  None  but  the  heir  at  common  law  can  enter  for  a  condition 
broken?     Thus,  if  a  person  seised  of  lands  in  right  of  his  mother, 

(a)  Plowd.  142.     Bro.  Ab.  Cond.  83.     Vide  tit.  8,  c.  1. 

(b)  Lit.  §  347.     (Infra,  §  50—51.)  (c)  1  Inst.  215,  a. 


1  The  heir  may  take  advantage  of  the  breach,  by  entry,  though  he  be  not  expressly 
mentioned  in  the  deed.  King's  Chapel  v.  Pelham,  9  Mass.  501  ;  Parker  v.  Nichols,  7 
Pick.  111.  [A  conveyance  made  by  the  grantor  to  a  third  person,  either  before  or 
after  breach  of  the  conditions,  will  not  carry  with  it  a  right  to  reenter  for  condition 
broken.  But  this  rule  does  not  extend  to  leases  in  fee,  reserving  rents,  nor  to  leases 
for  life  or  years.     Nicol  v.  N.  Y.  &  E.  K.  P.  Co.  12  Barb.  Sup.  Ct.  460.) 

2  The  meaning  is,  that  none  can  enter  but  he  on  whom  the  inheritance  descends  by 
the  law  of  the  land,  whether  it  be  statute  or  common  law. 

Where  a  father  conveyed  land  to  his  son,  upon  condition  that  the  son  should  main- 
tain him,  and  pay  all  his  debts,  &c,  with  a  clause  of  reentry;  it  was  held  that  the 
neglect  of  the  son  to  pay  a  debt  of  the  grantor,  due  to  another  son,  though  not  pre- 
sented for  payment  until  after  the  father's  death,  was  a  forfeiture  of  the  estate,  and 
entitled  the  other  son  to  enter,  and  to  recover  his  share  of  the  land,  in  ejectment,  as 
one  of  the  heirs  at  law.  Jackson  v.  Topping,  1  Wend.  388.  So,  where  a  farm  was 
devised  to  the  testator's  son,  on  condition  that  his  daughters  should  have  the  use  of  a 
room  in  the  house,  &c. ;  it  was  held,  that  the  daughters  might  enter  for  breach  of  the 


508    Title  XII T.     Estate  on  Condition.     Ch.  II.  s.  48—50. 

makes  a  feoffment  in  fee  of  them  upon  condition,  and  dies,  and 
afterwards  the  condition  is  broken,  the  heir  on  the  part  of  the 
father  shall  enter;  for  though  the  estate  does  not  descend  to 
him,  yet  the  right  of  entry  for  the  condition  broken,  which  was 
created  by  the  feoffment,  and  reserved  for  the  feoffor  and  his 
heirs,  descended  on  him.  But  when  he  has  entered,  the  heir  on 
the  part  of  the  mother  may  enter  upon  him.  (a) 

49.  If  a  condition  be  annexed  to  an  estate  held  in  gavelkind, 
and  is  broken,  the  heir  at  common  law  must  enter  for  the  breach  ; 
but  after  such  entry,  all  the  younger  sons  shall  enjoy  the  estate 
with  him.  (b) 

50.  Upon  the  dissolution  of  the  monasteries  by  King  Henry 
VIII.  most  of  their  estates  were  granted  to  private  persons,  who 
could  not  take  advantage  of  the  conditions  contained  in  the 
leases  which  had  been  formerly  made  of  them.  This  produced 
the  statute  32  Hen.  VIII.  c.  24,  reciting  that  divers  persons  had 
leased  manors,  &c,  for  life  or  lives,  or  years,  by  writing,  contain- 
ing certain  conditions,  covenants,  and  agreements  ;  and  reciting 
that,  by  the  common  law,  no  stranger  to  any  condition  or  cove- 
nant could  take  advantage  thereof,  &c.  It  is  enacted,  "  That 
all  persons  and  bodies  politic,  their  heirs,  successors,  and  assigns 
which  have,  or  shall  have,  any  gift  or  grant  of  the  king,  of  any 
lordships,  manors,  lands,  &c,  which  did  belong  or  appertain  to 
any  of  the  monasteries,  &c,  or  which  belonged  to  any  other 
persons,  &c,  and  also  all  other  persons,  being  grantees  or  as- 
signees to  the  king,  or  to  any  other  person  or  persons,  and  the 
heirs,  executors,  successors,  and  assigns  of  every  of  them,  shall  and 
may  have  the  like  advantage  by  entry  for  non-payment  of  rent, 
for  doing  waste,  or  other  forfeiture ;  and  the  same  remedy  by  ac- 
tion only,  for  not  performing  other  conditions,  covenants, 

35  *       and  agreements  *  contained  in  the  said  leases,  against  the 
lessees  and  grantees,  their  executors,  administrators,  and 
assigns,  as  the  lessors  and  grantors  ought,  should,  or  might  have 
had  at  any  time  or  times."  1 

(a)  1  And.  184.    2  And.  22.  (6)  Rob.  Gav.  119.     Godb.  3. 

condition,  and  recover  their  shares  of  the  land  as  heirs  at  law.  Hogeboom  v.  Hall,  24 
Wend.  146. 

1  Where  the  directors  of  a  private  company  made  a  lease,  with  a  clause  of  reentry, 
and  afterwards  the  company  was  incorporated,  with  a  provision  in  the  charter  that  all 


Title  XIII.     Estate  on  Condition.    Ch.  II.  s.  51—52.     509 

51.  Lord  Coke  states  the  following  resolutions  and  judgments 
made  upon  this  statute.  1.  The  statute  is  general,  viz.,  that  the 
grantee  of  the  reversion  of  every  common  person,  as  well  as  of 
the  king,  shall  take  advantage  of  conditions.  2.  It  extends  to 
grants  made  by  the  successors  of  the  king,  though  the  king  be 
only  named  in  the  act.  3.  Where  the  statute  speaks  of  lessees, 
the  same  does  not  extend  to  gifts  in  tail.  4.  Where  the  statute 
speaks  of  grantees  and  assignees  of  the  reversion,  an  assignee  of 
part  of  the  estate  of  the  reversion  1  may  take  advantage  of  the 
condition.  5.  A  grantee  of  part  of  the  reversion  2  shall  not  take 
advantage  of  the  condition.  6.  Where  the  lessor  bargains  and 
sells  the  reversion  by  deed  indented  and  enrolled,  the  bargainee 
is  not  in  the  per  by  the  bargainor,  and  yet  he  is  an  assignee 
within  the  statute.  So  if  the  lessor  grant  the  reversion  in  fee  to 
the  use  of  A  and  his  heirs,  A  is  a  sufficient  assignee  within  the 
statute,  because  he  comes  in  by  the  act  and  limitation  of  the 
party  ;  albeit  he  is  in  the  post,  and  the  words  of  the  statute  are. 
"  to  or  by ;  "  and  they  are  assignees  to  him,  though  they  be  not 
by  him.  But  such  as  come  in  merely  by  act  of  law,  as  the  lord 
by  escheat,  or  the  like,  shall  not  take  benefit  by  this  statute. 
7.  Although  the  words  of  the  statute  are,  for  non-payment  of 
rent,  or  for  doing  waste  or  other  forfeiture,  yet  the  grantees  or 
assignees  shall  not  take  benefit  of  every  forfeiture,  by  force  of  a 
condition,  but  only  of  such  conditions  as  either  are  incident  to 
the  reversion,  as  rent ;  or  for  the  benefit  of  the  estate,  as  for  not 
doing  waste,  for  keeping  the  houses  in  repair,  or  such  like  ;  and 
not  for  the  payment  of  any  sum  in  gross,  or  things  of  that 
nature,  (a) 

52.  Where  a  person  enters  for  a  condition  broken,  the  estate 
becomes  void  ab  initio ;  the  person  who  enters  is  again  seised  of 
his  original  estate,  in  the  same  manner  as  if  he  had  never  con- 

(«)  1  Inst.  215,  a.     Hill  v.  Grange,  Plowd.  167.     See  Twynam  o.  Pickaril,  2  B.  &  Aid.  105. 


contracts  previously  entered  into  with  the  directors  of  the  company  should  he  as  valid 
and  effectual  as  if  the  company  had  then  heen  incorporated,  and  the  contracts  made 
with  the  corporation  ;  it  was  held  that  the  corporation  might  support  an  ejectment 
upon  the  clause  of  reentry.     Doe  v.  Knebell,  2  M.  &  Rob.  66. 

1  E.  g.,  where  the  reversioner  in  fee  grants  the  reversion  for  life,  or  for  years. 

2  E.  g.,  where  the  reversioner  of  three  acres  grants  the  reversion  of  two  of  them.  In 
such  case  the  condition  is  destroyed,  viz.,  the  right  of  entry  for  non-payment  of 
rent. 

43* 


510     Title  XIII.    Estate  on  Condition.     Ch.  II.  5.  52—57. 

veyed  it  away.1  And  as  the  entry  of  the  feoffor  on  the  feoffee 
for  a  condition  broken  defeats  the  estate  to  which  the  condition 
was  annexed,  so  it  defeats  all  rights  and  incidents  annexed  to 
that  estate,  together  with  all  charges  and  incumbrances  created 

by  the  feoffee  during  his  possession  :  for,  upon  the  entry 
36  *       of  the  *  feoffor,  he  becomes  seised  of  an  estate  paramount 

to  that  which  was  subject  to  those  charges,  (a) 

53.  Thus  if  a  person,  having  an  estate  on  condition,  grants  a 
rent-charge  out  of  the  land,  or  acknowledges  a  statute  or  judg- 
ment, and  afterwards  the  condition  is  broken,  for  the  breach  of 
which  the  feoffor  enters,  he  shall  avoid  all  those  incumbran- 
ces. (6) 

54.  So  if  a  man  seised  of  a  conditional  estate  marries,  after 
which  the  condition  is  broken,  and  the  grantor  enters  for  the 
breach,  he  will  avoid  the  wife's  title  to  dower,  (c) 

55.  Although,  in  general,  a  person  who  enters  for  a  condition 
broken,  becomes  seised  of  his  old  estate,  yet  Lord  Coke  mentions 
some  cases  where  this  cannot  be  on  account  of  the  alterations 
which  have  happened  in  the  mean  time,  (d) 

56.  An  entry  for  a  condition  broken  does  not  defeat  copyhold 
grants:  therefore,  if  a  person  makes  a  feoffment  in  fee  of  a 
manor,  upon  condition,  and  the  feoffee  grants  estates  by  copy, 
if  afterwards  the  condition  be  broken,  and  the  feoffor  enter  for 
the  breach,  yet  the  grants  by  copy  made  by  the  feoffee,  even 
after  the  breach  of  the  condition,  shall  stand  good ;  for  the 
feoffee  was  legitimus  dominus  pro  tempore*  Besides,  the  copy- 
holder does  not  claim  his  estate  from  the  lord's  grant,  but  from 
the  custom,  (e) 

57.  If,  however,  a  lease  be  made  of  a  manor  for  years  cnly 
upon  condition,  and  the  condition,  is  broken,  no  copyhold  grants 
made  after  the  breach  of  the  condition  will  bind  the  lessor ;  be- 
cause the  estate  of  the  lessee  became  absolutely  void  by  the 
breach  of  the  condition  without  entry.  (/) 

(a)  Lit.  §  325.     1  Inst.  202,  a.  (&)  1  Rep.  147,  b. 

(c)  1  Roll.  Ab.  474.  (d)  1  Inst.  202,  n. 

(e)  Co.  Cop.  §  34.     4  Rep.  24,  a.  Gilb.  Ten.  200.     Tit.  10,  c.  2. 
(/)  Gilb.  Ten.  201. 

1  If  the  condition  has  been  performed  in  part,  by  the  payment  of  money,  and  the 
grantor  enters  for  breach  of  the  residue,  whatever  was  previously  paid,  he  may  retain ; 
but  he  cannot  demand  further  performance,  after  taking  back  the  land.  Frost  v.  Frost, 
2  Fairf.  235. 


Title  XIII.     Estate  on  Condition.    Ch.  II.  s.  58—64.     511 

58.  A  condition  being  entire,  cannot  in  general  be  apportioned 
by  the  act  of  the  parties ;  therefore  a  grantee  of  part  of  the  re- 
version shall  not  take  advantage  of  a  condition.  As  if  a  lease  be 
made  of  three  acres  of  land,  reserving  a  rent,  upon  condition ; 
and  the  reversion  of  two  acres  of  the  land  is  granted  away. 
The  rent  shall  be  apportioned  by  the  act  of  the  parties  ;  but  the 
condition  is  destroyed ;  for  that  is  entire,  and  against  common 
right,  (a) 

59.  There  are,  however,  two  cases  in  which  Lord  Coke  says  a 
condition  may  be  apportioned: — 1.  By  act  in  law,  as  if  a  person 
seised  of  two  acres,  the  one  in  fee,  the  other  in  Borough  Eng- 
lish, has  issue  two  sons,  and  leases  both  acres  for  life  or  years 
upon  condition,  the  lessor  dies ;  in  this  case,  by  the 
descent,  which  *is  an  act  in  law,  the  reversion  and  con-  *  37 
dition  are  divided.     2.  By  act  and  wrong  of  the  lessee,  as 

if  a  lessee  makes  a  feoffment  of  part  of  the  lands,  and  the  lessor 
enters  for  the  forfeiture ;  there  the  condition  shall  be  apportioned ; 
for  no  one  shall  take  advantage  of  his  own  wrong,  (b) 

60.  A  condition  may  be  destroyed  in  several  ways.  Thus  it 
has  been  stated,  that  where  a  condition  cannot  be  apportioned,  it 
is  destroyed. 

61.  A  condition  may  be  destroyed  by  a  release.  Thus  Lord 
Coke  says,  if  feoffee  upon  condition  make  a  lease  for  life,  or  a 
gift  in  tail,  and  the  feoffor  release  the  condition  to  the  feoffee, 
he  shall  not  enter  on  the  lessee  or  donee,  because  he  cannot 
regain  his  ancient  estate,  (c) 

62.  If  the  feoffee  upon  condition  make  a  lease  for  life,  the  re- 
mainder in  fee,  and  the  feoffor  release  the  condition  to  the  lessee 
for  life,  it  shall  enure  to  him  in  remainder,  (d) 

63.  Acceptance  of  rent  after  the  breach  of  a  condition  will,  in 
many  cases,  operate  as  a  discharge  of  the  condition,  (e) 

64.  Lord  Coke  mentions  a  distinction  between  a  condition  that 
defeats  an  estate,  but  requires  a  reentry  ;  and  a  limitation  which 
determines  the  estate  ipso  facto,  without  entry.1     Of  the  first 

(a)  1  Inst  215,  a.  (b)  Idem, 

(c)  1  Inst.  291,  b.  297,  b.  (d)  Idem. 

(e)    Vide  tit.  32,  c.  5. 

1  A  condition  is  something  inserted  for  the  benefit  of  the  grantor;  giving  him  the 
power,  on  default  of  performance,  to  destroy  the  estate,  if  ho,  will,  and  revest  the  estate  in 
himself  or  his  heirs.  As  the  law  does  not  presume  forfeitures,  it  requires  some  express 
act  of  the  grantor,  as  evidence  of  his  intent  to  reclaim  the  estate  : — viz.  an  entry. 


512       Title  XIII.     Estate  on  Condition.    Ch.  II.  s.  64—66. 

sort,  it  has  been  shown  that  a  stranger  cannot  take  advantage ; 
but  of  limitations  it  is  otherwise :  as  if  a  man  makes  a  lease 
quousqite,  that  is,  until  J.  S.  returns  from  "Rome;  the  lessor 
grants  over  the  reversion  to  a  stranger ;  J.  S.  returns  from  Rome  : 
the  grantee  of  the  reversion  may  take  advantage  of  the  return  of 
J.  S.  and  enter,  because  the  estate  was  determined  by  an  express 
limitation,  (a) 

65.  It  is  the  same  where  a  man  makes  a  lease  to  a  woman 
quamdiu  casta  vixerit ;  or  where  a  man  makes  a  lease  for  life  to 
a  widow  si  tamdiu  in  purd  viduitate  vixerit.  So  if  a  man  makes 
a  lease  for  100  years,  if  the  lessee  lives  so  long,  the  lessor  grants 
over  the  reversion,  and  the  lessee  dies,  the  grantee  of  the  rever- 
sion may  enter,  (b) 

66.  There  are  also  several  cases  of  wills,  in  which  the  estate 
is  devised  over  on  breach  of  the  condition,  which  will  be  stated 
in  a  subsequent  title.  These,  however,  are  not  properly  estates 
on  condition,  but  conditional  limitations,  (c) 

(a)  1  Inst.  214,  b.     Vin.  Ab.  Condition,  (K)  pi.  12,  13. 
(6)  Idem.  (c)  Tit.  16,  c.  2. 


A  limitation  is  conclusive  of  the  time  of  continuance,  and  of  the  extent  of  the  estate 
granted  ;  and  beyond  which  it  is  declared  at  its  creation  not  to  be  intended  to  continue. 

Conditions  render  the  estate  voidablefby  entry. 

Limitations  render  it  void,  without  entry. 

If,  upon  failure  of  that  upon  which  the  estate  is  made  to  depend,  no  matter  how 
expressed  in  the  deed,  the  land  is  to  go  to  a  third  person ;  this  is  a  limitation  over,  and 
not  a  condition.  Tor  if  a  condition,  an  entry  by  the  grantor  would  be  necessary  ;  and  he 
might  defeat  the  limitation  by  neglecting  to  enter. 

A  limitation  is  imperative,  and  is  determined  by  the  rules  of  law. 

A  condition  not  only  depends  on  the  option  of  the  grantor,  but  is  also  controlled  by 
Equity,  if  the  grantor  attempts  to  make  an  inequitable  use  of  it. 

The  performance  of  a  condition  is  excused  by  the  act  of  God,  or  of  the  law,  or  of  the 
party  for  whose  benefit  it  was  made. 

A  limitation  determines  the  estate  absolutely,  whatever  be  its  nature.  See  1  Preston 
on  Estates,  p.  40—59  ;  2  Bl.  Comm.  155, 156  ;  11  Am.  Jur.  42—62  ;  4  Kent,  Comm. 
126—128. 


513 


TITLE  XIV. 

ESTATE   BY   STATUTE   MERCHANT,    STATUTE   STAPLE,   AND   ELEGIT. 
BOOKS    OF   REFERENCE   UNDER    THIS    TITLE. 

Blackstone's  Commentaries!    Book  II.  ch.  10. 

Kent's  Commentaries.    Vol.  IV.  Lect.  66. 

Owen  Flintoff.     On  the  Law  of  Real  Property.     Vol.  II.  Book  I.  ch.  3,  sec.  6, 

art.  4,  5. 
Lomax's  Digest.     Vol.  I.  tit.  12. 


Sect.     1.  Estates   held  as  a   Security 
for  Money. 

6.  Statute  of  Acton  Burnett. 

7.  Statute  Merchant. 
10.  Statute  Staple. 

13.  Recognizance. 

14.  Judgment  and  Elegit. 


20 


bind 


Statute 


When        Judgments 

Lands. 
23.   Must  be  docketed. 
29.  Execution    upon    a 

or  Recognizance. 
34.  Execution  upon  a  Judgment. 
41.  Priority    of   the    Crown    in 

Executions. 


Sect.  49.   What  may  be  extended. 

52.  Terms  for  Years. 

57.  Trust  Estates. 

60.  What  is  not  liable  to  an 
Extent. 

65.  These  Estates  are  only  Chat- 
tels. 

68.  Must  be  executed  by  Entry. 

74.  Remedies  upon  Eviction. 

81.  How  long  they  may  en- 
dure. 

84.  How  they  are  determined. 

94.  A  Statute,  Sj'c.  will  protect  a 
Purchaser. 


Section  1.  I  shall  now  proceed  to  explain  the  nature  of  those 
estates  which  are  held  as  a  security  or  pledge  for  the  repayment  of 
money ;  of  which  there  are  two  kinds ;  one,  where  the  creditor 
acquires  the  estate  by  some  legal  and  compulsory  process ;  and 
the  other  where  the  estate  is  conveyed  by  the  debtor  to  the  cred- 
itor, as  a  pledge  for  securing  the  repayment  of  the  money  bor- 
rowed. The  first  kind  are  called  estates  by  statute  merchant, 
statute  staple,  and  elegit ;  and  owe  their  existence  to  the  following 
circumstances : — 

2.  Upon  the  introduction  of  the  feudal  law  into  England,  the 
feudatory  was  not  only  prohibited  from  alienating  his  land,  but 
also  from  charging  it  with  the  payment  of  his  debts;  because 


514     Title  XIV.     Estate  by  Statute  Merchant,  Sfc.  s.  2—7. 

that  might  tend  to  disable  him  from  performing  his  military  ser- 
vices.    The  goods  and  chattels  therefore  of  the  debtor, 

39  *  and  the  *  annual  profits  of  the  lands,  as  they  arose,  were 
the  only  funds  which  the  law  allotted  for  the  payment  of 

his  debts.     And  this  was  thought  the  more  reasonable,  because 

nothing  more  than  a  chattel  being  borrowed,  the  chattels  only  of 

the  debtor  ought  to  be  liable  to  the  debt,  (a) 

3.  Although  this  law  was  well  suited  to  the  situation  of  a 
warlike  nation,  who  cultivated  their  own  lands,  and  lived  on  the 
produce  ;  yet  it  was  no  way  calculated  for  a  trading  people, 
where  it  is  a  material  object  to  create  an  extensive  credit ;  which 
can  only  be  done  by  making  every  kind  of  property  subject  to 
the  payment  of  debts.  Therefore,  when,  about  the  reign  of 
Henry  III.,  the  English  began  to  acquire  some  little  foreign  trade, 
the  inconveniences  of  this  doctrine  began  to  be  felt. 

4.  The  king's  prerogative,  indeed,  formed  an  exception  to 
this  rule ;  for  he  might  always  have  had  execution  of  the  real 
estate,  goods,  and  chattels  of  his  debtor;  but  still  under  this 
restriction  inserted  in  Magna  Charta,  c.  8,  that  the  lands  of  the 
debtor  should  not  be  extended,  where  the  chattels  were  sufficient, 
and  the  debtor  ready  to  answer  the  debt,  (b) 

5.  In  the  case  of  a  private  person,  lands  were  also  liable  to 
execution  in  an  action  of  debt  against  the  heir,  upon  an  obliga- 
tion made  by  his  ancestor ;  although,  in  such  a  case,  the  creditor 
could  not  have  had  execution  against  the  ancestor  himself.  The 
reason  given  for  this  by  Lord  Coke  is,  that  as  the  common  law 
had  provided  an  action  of  debt  against  the  heir,  if  the  creditor 
could  not  have  execution  of  the  land,  the  action  would  have 
been  useless  ;  for  the  goods  and  chattels  of  the  ancestor  belonged 
to  his  executors,  (c) 

6.  Thus  stood  the  common  law  till  the  reign  of  Edward  I., 
when  great  complaints  having  been  made  by  foreign  merchants 
respecting  the  difficulty  of  recovering  their  debts,  which  had 
occasioned  several  of  them  to  withdraw  themselves  from  the 
kingdom ;  the  statute  of  Acton  Burnett,  Be  Mercatoribus,  was 
made  in  the  eleventh  year  of  that  prince ;  by  which  it  was 
enacted,  that  the  chattels  and  devisable  burgages  of  the  debtor 
might  be  sold  for  the  payment  of  his  debts. 

7.  In  consequence  of  several  complaints  that  the  sheriffs  mis- 

(a)  Wright's  Ten.  169.  (b)  Tit.  1,  §  59.  (c)  3  Rep.  12,  a. 


Title  XIV.     Estate  by  Statute  Merchant,  SfC.  s.  7 — 10.     515 

interpreted  this  statute,  and  delayed  the  execution  of  it,  King 
Edward,  in  the  parliament  held  at  Westminster  two  years  after, 
caused  it  to  be  rehearsed  before  him ;  and  as  a  further 
security  *to  merchants,  a  new  statute  was  made,  by  *40 
which  it  was  enacted  that  every  merchant,  to  whom 
money  was  due,  should  cause  his  debtor  to  come  before  the 
mayor  of  London,  or  some  chief  warden  of  a  city,  and  one  of  the 
clerks  that  the  king  should  thereto  assign,  who  should  acknowl- 
edge the  debt,  and  the  day  of  payment ;  that  this  acknowledg- 
ment should  be  enrolled  by  one  of  the  clerks ;  the  roll  to  be 
double,  whereof  one  part  should  remain  with  the  mayor,  the 
other  with  the  clerk ;  that  one  of  the  said  clerks  should  write  an 
obligation,  to  which  the  seal  of  the  debtor  should  be  put,  to- 
gether with  the  king's  seal.  If  the  debtor  did  not  pay  at  the  day 
limited,  all  his  lands  should  be  delivered  to  the  merchant,  to  hold 
to  him  until  such  time  as  the  debt  was  wholly  levied ;  and  the 
merchant  should  have  such  seisin  in  the  lands  and  tenements 
delivered  to  him  or  his  assigns,  that  he  might  maintain  a  writ  of 
novel  disseisin,  if  he  was  ousted,  (a) 

8.  This  species  of  security  is  called  a  statute  merchant;  it 
may  be  described  to  be  a  bond  or  contract  upon  record,  publicly 
acknowledged  before  the  proper  officer,  and  attested  by  the  king's 
seal,  (b) 

9.  The  addition  of  the  king's  seal,  which  was  never  required 
to  any  contract  at  common  law,  was  made  in  order  to  authenti- 
cate, and  render  the  security  of  a  higher  nature  than  any  other 
then  known.  For  by  this  the  king,  in  the  person  of  the  mayor, 
attests  the  contract,  and  takes  immediate  cognizance  of  the  debt. 
Consequently,  execution  is  to  be  awarded,  upon  failure  of  pay- 
ment on  the  day  assigned,  without  any  mesne  process  to  summon 
the  debtor  ;  or  the  trouble  or  charge  of  bringing  proofs  to  convict 
him.  For  judges  require  these,  on  common  contracts,  to  satisfy 
themselves  of  the  justice  and  legality  of  the  plaintiffs  demands, 
before  they  award  any  execution  against  the  defendant.  But  to 
this  contract  the  king  himself  is  a  witness.  There  is  besides  the 
acknowledgment  and  confession  of  the  debtor,  that  he  really 
owes  so  much ;  which  is  the  best  and  strongest  evidence  of  the 
fact ;  therefore  immediate  execution  is  granted. 

10.  Another  species  of  security  of  a  similar  nature  in  many 

(a)  13  Edw.  1,  stat.  3,  c.  1.  (&)  2  Saund.  R.  G9,  c.  n. 


516      Title  XIV.     Estate  by  Statute  Merchant,  8fC.  s.  10—14. 

respects  to  a  statute  merchant  is  a  statute  staple ;  to  explain 
which  it  will  be  necessary  to  premise,  that  in  the  reign  of  Ed- 
ward III.  it  was  thought  expedient  to  pass  the  statute  of  the 
staple  27  Edw.  III.  stat.  2,  which  confined  the  sale  of  all  English 
commodities,  that  were  to  be  exported,  to  certain  towns 

41  *       in  England,  *  called  the  estaple  or  staple,  where  foreigners 

might  resort  to  purchase ;  and  to  declare  that  no  English- 
man should,  under  great  penalties,  export  these  commodities 
himself. 

11.  This  statute  directs  a  proceeding  similar  to  that  which  was 
prescribed  for  obtaining  a  statute  merchant.  The  mayor  of  the 
place  is  empowered  to  take  recognizances  of  debts  which  any  one 
makes  before  him,  in  the  presence  of  the  constables  of  the  staple  ; 
for  which  purpose,  in  every  staple,  a  seal  was  to  be  kept  by  the 
mayor,  with  which  all  obligations  made  upon  such  recognizances 
were  to  be  sealed  ;  and  in  consequence  of  this  sealed  obligation, 
execution  might  be  obtained  against  the  lands  and  tenements  of 
the  debtor,  in  the  same  manner  as  under  a  statute  merchant :  so 
that  the  creditor  should  have  a  permanent  interest  in  the  lands 
and  tenements  thus  delivered  to  him  ;  with  a  right,  if  ousted,  to 
recover  them  by  a  writ  of  novel  disseisin. 

12.  A  statute  staple  is  therefore  a  bond  of  record,  acknowledged 
before  the  mayor  of  some  trading  town,  and  attested  by  a  public 
seal.  But  although  both  the  statute  merchant  and  statute  staple 
were  originally  intended  for  the  benefit  of  merchants  only  ;  yet, 
as  they  were  obtained  without  any  great  trouble  or  expense,  they 
became  generally  adopted  as  a  common  mode  of  security. 

13.  The  practice  of  obtaining  statute  staple  of  persons  not  con- 
cerned in  trade  became  so  universal  that  an  act  was  made  in  23 
Hen.  VIII.  prohibiting  any  persons  but  merchants  from  taking 
them.  But  this  act  created  a  new  kind  of  security,  called  a 
recognizance  in  the  nature  of  a  statute  staple,  which  is  a  bond 
acknowledged  before  the  Justices  of  the  King's  Bench  or  Common 
Pleas,  the  Mayor  of  the  staple  at  Westminster,  or  the  Recorder 
of  London,  and  enrolled :  upon  which  the  same  advantages  may 

be  had  as  upon  a  statute  staple. 

42  *  *  14.  By  the  common  law,  in  all  actions  where  judg- 

ment for  money  alone  was  obtained,  satisfaction  could  only 
be  had  of  the  goods  and  chattels  of  the  defendant,  and  the  grow- 
ing profits  of  his  lands,  but  not  the  possession  of  them.     This 


Title  XIV.    Estate  by  Statute  Merchant,  Src.  s.  14—16.     517 

was  a  natural  consequence  of  the  feudal  principles,  which  pro- 
hibited the  alienation,  and  of  course  the  incumbering  a  feud  with 
debts.  When  the  restrictions  on  alienation  were  taken  away, 
this  consequence  still  continued  ;  no  creditor  could  take  possession 
of  his  debtor's  land,  but  only  levy  the  growing  profits  ;  and  if  the 
debtor  aliened  the  land,  the  creditor  lost  even  that,  (a) 

15.  To  remedy  this,  it  was  enacted  by  the  statute  Westm.  2, 
13  Edw.  I.  c.  18,  that  when  a  debt  was  recovered  or  acknowl- 
edged, or  damages  adjudged  in  the  king's  courts,  the  plaintiff 
should  have  his  election,  either  to  have  a  writ  of  fieri  facias,  or 
else  that  the  sheriff  should  deliver  to  him  all  the  chattels  of  the 
debtor,  saving  only  his  oxen  and  beasts  of  the  plough ;  and  also 
one  half  of  his  lands,  until  the  debt  was  levied,  upon  a  reasonable 
price  or  extent,  (b) 

16.  In  pursuance  of  this  statute,  a  new  writ  of  execution  was 
framed,  called  a  writ  of  elegit,  from  the  words  of  the  writ :  for 
where  a  plaintiff  prayed  this  writ,  the  entry  on  the  rolls  was — 
Quod  elegit  sibi  executionem  fieri  de  omnibus  catallis,  et  medie- 
tatem  terra?.  And  thus  a  judgment  in  an  action  of  debt,  obtained 
in  any  of  the  courts  of  record  at  Westminster,  becomes  a  lien  on 
freehold  estates,  as  it  enables  the  person  for  whom  such  judg- 
ment is  given,  to  obtain  one  half  of  the  debtor's  lands  and  tene- 
ments.1 

(a)  Harbert's  case,  3  Rep.  11.  (b)  2  List.  394;  2  Saund.  B.  68,  a.  n. 

1  In  those  United  States  where  land  is  liable  to  an  elegit,  or  to  be  sold  on  execu- 
tion, the  doctrine  that  the  lands  of  the  debtor  are  bound  by  the  judgment,  is  recog- 
nized, though  in  many  cases  with  modifications,  either  by  express  statutes,  or  by 
immemorial  usage.  See  note,  at  the  end  of  this  title.  See  also  4  Kent,  Comm. 
434—438. 

Regularly,  a  judgment  binds  only  those  lands  of  which  the  debtor  was  seised,  either 
in  law  or  equity,  at  the  time  of  its  rendition.  And  an  actual  possession,  whether  ad- 
verse or  under  a  contract  to  purchase,  is  sufficient  evidence  of  such  seisin.  Jackson  v. 
Town,  4  Cowen,  599  ;  Jackson  v.  Parker,  9  Cowen,  73.  But  it  is  no  lien  upon  a  mere 
equity,  such,  for  example,  as  the  interest  of  a  cestui  que  trust.  Jackson  v.  Chapin,  5 
Cowen,  485.  In  some  States,  however,  judgments  bind  every  interest  which  the  debtor 
may  have  in  the  lands.  Carkhuff  v.  Anderson,  3  Binn.  4  ;  Cahoon  v.  Hollenback,  16 
S.  &  It.  425.  The  judgment  is  a  lien  upon  lands  owned  and  possessed  by  the  debtor,  at 
the  time  of  judgment,  though  holden  adversely  to  him  at  the  time  of  levy  and  sale; 
Jackson  v.  Tuttlc,  9  Cow.  233;  6  Wend.  213  ;  but  it  is  not  a  lien  in  Pennsylvania,  on 
lands  purchased  by  the  debtor  after  judgment,  and  sold  by  him  before  execution.  Col- 
houn  v.  Snider,  0  Binn.  135.     See  post,  §  38,  note. 

[In  New  York,  since  the  Revised  Statutes,  the  common-law  lien  of  a  judgment  does 
not  attach  at  all  upon  the  real  estate  of  the  debtor,  until  the  judgment  has  been  actually 

vol.  i.  44 


518     Title   XIV.     Estate  by  Statute  Merchant,  Sfc.  s.  17. 
17.  A  judgment  will  therefore  take  place  of  any  conveyance 

docketed.  Buclian  v.  Sumner,  2  Barb.  Ch.  K.  165.  Where  the  equities  of  parties  are 
equal  against  the  lien  of  a  judgment,  that  which  first  accrued  is  entitled  to  preference. 
Northrup  v.  Metcalf,  1 1  Paige,  570.  Where  a  debtor  has  only  an  instantaneous  seisin, 
the  lien  of  a  judgment  against  him  does  not  attach.  Tallman  v.  Farley,  1  Barb.  Sup. 
Ct.  280.  A  judgment  is  a  lien  upon  mortgaged  premises, subject  to  the  amount  due  on 
the  mortgage  at  the  time  when  the  judgment  is  docketed,  and  claims  secured  by  the 
mortgage  which  do  not  accrue  until  afterwards,  will  be  postponed  to  it.  Goodhue  v. 
Berrien,  2  Sandf.  Ch.  630.  But  a  judgment  recovered  for  a  debt  secured  by  mortgage, 
is  not  a  lien  upon  the  mortgaged  premises.  Greenwich  Bank  v.  Loomis,  2  lb.  70.  A 
became  lessee  of  certain  premises,  and  before  the  time  of  his  taking  possession  arrived, 
he  assigned  the  lease  to  B.  Before  he  became  lessee,  judgments  had  been  docketed 
against  him.  These  judgments  were  held  not  to  be  liens  upon  the  leasehold  premises, 
as  A  was  never  in  possession  of  them.     Crane  v.  O'Connor,  4  Edw.  Ch.  409. 

The  lien  of  a  judgment  does  not  attach  in  equity  upon  the  mere  legal  title  to  land, 
when  the  equitable  title  is  in  another,  and  if  the  purchaser  under  the  judgment  has 
notice  of  the  equitable  title  before  his  purchase  and  the  actual  payment  of  the  money,  he 
cannot  protect  himself  as  a  bond  fide  purchaser.  Averill  v.  Loucks,  6  Barb.  Sup.  Ct. 
19;  Lounsbury  v.  Purdy,  11  lb.  490.  A  judgment  is  not  a  lien  upon  the  interest  of  a 
person  holding  a  contract  for  the  purchase  of  land.  But  in  equity  any  person  acquir- 
ing the  legal  title,  with  notice  of  the  contract,  takes  it  subject  to  the  equities  affecting 
the  land  in  the  hands  of  the  vendor.     Mover  v.  Hinman,  17  lb.  137. 

In  Pennsylvania,  an  execution  and  levy  raise  no  new  lien  separate  from  the  judgment 
lien,  and  on  the  expiration  of  the  lien  of  the  judgment  before  the  levy  is  completed,  the 
lien  of  judgments  subsisting  at  the  time,  will  hold  the  land  in  preference  to  the  execu- 
tion and  levy.  Jameson's  Appeal,  6  Barr,  280.  A  judgment  for  ground  rent,  creates 
no  new  lien,  such  lien  arising  from  the  ground  rent  deed  and  not  from  the  judgment, 
and  not  being  subject  to  the  Statute  of  1798  of  that  State  respecting  judgment  liens. 
Wells  v.  Gibson,  7  Barr,  154. 

In  Virginia,  a  judgment  is  a  lien  upon  the  lands  owned  by  the  debtor  at  the  date  of 
the'judgment  in  the  hands  of  bond  fide  alienees  for  value,  Kodgers  v.  M'Cluer,  4  Gratt. 
81 ;  but  a  prior  deed  of  trust  unrecorded  is  null  and  void  as  to  a  subsequent  judgment 
lien ;  nor  is  such  lien  defeated  by  the  discharge  of  the  debtor  in  bankruptcy  under  the 
federal  bankrupt  act  of  1841.     McCance  v.  Taylor,  10  Gratt,  580. 

A  judgment  in  favor  of  the  Commonwealth  upon  a  recognizance  to  the  Common- 
wealth, creates  no  lien  upon  the  debtor's  estate  unless  by  express  statute.  Com- 
monwealth v.  Adkins,  8  B.  Mon.  380.  The  lien  of  a  judgment  is  confined  to  such 
property  as  is  liable  to  levy  on  execution  and  sale.  Kobertson  u.  Demoss,  23  Miss. 
(1  Cushm.)  298. 

In  Illinois,  a  judgment  against  an  administrator  is  not  a  lien  upon  the  land  left  by  the 
decedent.     Stone  v.  Wood,  16  111.  177.     Scates,  J.,  dissenting. 

The  lien  of  a  judgment  in  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Pennsylvania,  is  coextensive  with  the  District.  Lombard  v.  Bayard,  Wal- 
lace, Jr.  196.  So  a  judgment  of  the  Circuit  Court  of  the  United  States  for  Indiana,  is  a 
lien  on  all  the  lands  of  the  judgment  defendant  in  that  State.  Simpson  v.  Niles,  1 
Smith,  104.  So  in  Illinois,  United  States  v.  Duncan,  12  111.  523.  And  so  in  Arkansas, 
Byers  v.  Fowler,  7  Eng.  218;  Trapnall  v.  Richardson,  8  Eng.  543.  In  Alabama, 
judgments  rendered  in  the  Circuit  Courts  of  the  United  States  create  alien  on  the  lands 
of  the  defendant  within  the  State,  coextensive  with  the  lien  of  judgments  rendered  in 


Title  XIV.     Estate  by  Statute  Merchant,  Sfc.  s.  17—21.   519 

*  of  the  land  which  is  made  subsequent  to  it ;   though       *  43 
it  is  said  that  a  judgment  creditor  has  neither  jus  in  re, 
nor  ad  rem;  therefore  if  he  releases  all  his  right  to  the  land,  yet 
he  may  extend  it  afterwards,  (a) 

18.  The  statute  says,  cum  debitum  fuerit  recuperatum,  vel  in 
curid  regis  recognition.  These  last  words  gave  rise  to  a  practice 
which  is  now  become  general :  when  money  is  borrowed,  the 
debtor  not  only  executes  a  bond  to  the  creditor,  but  also  a  war- 
rant of  attorney,  addressed  to  one  or  more  attorneys  of  some  court 
at  Westminster,  authorising  him  or  them  to  acknowledge  a  judg- 
ment for  the  money ;  which  enables  the  creditor  to  sue  out  a  writ 
of  elegit  as  effectually  as  if  the  judgment  had  been  obtained  in 
an  adversary  suit. 

19.  In  a  modern  case,  Lord  Kenyon  said  he  saw  no  difference 
between  a  judgment  that  was  obtained  in  consequence  of  an 
action  resisted,  and  a  judgment  that  was  signed  under  a  warrant 
of  attorney  ;  since  the  latter  was  merely  to  shorten  the  process, 
and  to  lessen  the  expense  of  the  proceedings,  (b) 

20.  The  whole  term  is  considered  in  law,  to  many  purposes, 
as  but  one  day ;  therefore  if  a  judgment  be  given  or  acknowl- 
edged, at  any  time  during  a  term,  it  relates  to  the  first  day  of 
that  term,  and  is  considered  in  law  as  having  been  given  on  that 
day.  Now  the  first  day  of  term  is  the  essoign  day,  for  the  quarto 
die  post  is  only  a  day  of  grace,  (c) 

21.  In  consequence  of  this  doctrine,  purchasers  were  frequently 

(a)  2  P.  Wms.  491. 

(b)  Doe  v.  Carter,  tit.  13,  c.  1,  and  see  Sansom  v.  Goode,  2  Barn.  &  Aid.  568. 

(c)  Hodges  v.  Templar,  6  Mod.  191. 


the  State  Courts.  Pollard  v.  Cocke,  19  Ala.  1S8.  In  Indiana,  judgments  entered  on 
the  same  day,  create  equal  liens  in  favor  of  each  of  the  judgment  creditors,  without  re- 
gard to  priority  of  issue  or  levy  of  execution,  and  if  the  land  be  sold  on  execution) 
each  creditor  is  entitled  only  to  his  pro  rata  share  of  the  proceeds.  Rockhill  v.  Hanna,  4 
McLean,  555. 

In  Ohio,  the  lien  covers  the  land  with  all  its  incidents  and  appurtenances  as  used  and 
enjoyed  at  the  time  such  lien  attaches.  Morgan  v.  Mason,  20  Ohio,  401.  Leasehold  es- 
tates in  the  lands  and  water-power  situated  on  the  canals  and  rivers  and  owned  and  leased 
by  the  State,  are  not  subject  to  judgment  liens.  Buckingham  v.  Eeeve,  19  Ohio,  399. 
A  judgment  in  Indiana  is  not  a  lien  upon  land  held  by  the  judgment  defendant  under 
a  title  bond.  Cooper  v.  Cutshall,  1  Smith  (Ind.)  128;  S.  C.  1  Carter,  246.  Nor  is 
it  a  lien  on  an  equitable  estate.  Russell  v.  Houston,  5  Ind.  (Port.)  180.  In  Iowa,  it 
cannot  operate  as  a  lien  upon  a  preemption  right  to  land.  It  attaches  only  to  the  estate 
in  fee,  or  by  inheritance.  Nor  will  it  be  a  lien  upon  after-acquired  estate  until  a  levy 
is  made.    Harrington  v.  Sharp,  1  Iowa,  131 ;   Wood  v.  Mains,  lb.  275.] 


520     Title  XIV.  Estate  by  Statute  Merchant,  SfC.  s.  21—24. 

affected  by  judgments  obtained  after  their  conveyances  had  been 
executed.  To  remedy  this,  it  was  enacted  by  the  fourteenth 
section  of  the  Statute  of  Frauds,  "  That  any  judge  or  officer  of 
any  of  his  majesty's  courts  of  Westminster  that  shall  sign  any 
judgments,  shall,  at  the  signing  of  the  same,  without  fee.  set 
down  the  day  of  the  month  and  year  of  his  so  doing,  upon  the 
paper  book,  docket,  or  record,  which  he  shall  sign  ;  which  day 
of  the  month  and  year  shall  be  also  entered  upon  the  margent 
of  the  roll  of  the  record,  where  the  said  judgment  shall  be  en- 
tered." 

22.  By  the  fifteenth  section  it  is  enacted,  "  That  such  judg- 
ments as  against  purchasers  bond  fide,  for  valuable  consideration 
of  lands,  &c,  to  be  charged  thereby,  shall,  in  consideration  of 
law,  be  judgments  only  from  such  time  as  they  shall  be  so  signed ; 

and  shall  not  relate  to  "the  first  day  of  the  term  whereof 
44  *       *  they  are  entered,  or  the  day  of  the  return  of  the  original, 
or  filing  the  bail." 

23.  By  the  statute  4  &  5  Will,  and  Mary,  c.  20,  made  per- 
petual by  7  &  8  Will.  III.  c.  36,  §  3,  it  is  enacted,  that  the  clerk 
of  the  essoigns  of  the  Court  of  Common  Pleas,  the  clerk  of  the 
dockets  of  the  Court  of  King's  Bench,  and  the  master  of  the 
office  of  pleas  in  the  Court  of  Exchequer,  shall  make  and  put 
into  an  alphabetical  docket,  by  the  defendants'  names,  a  particular 
of  all  judgments  for  debt,  by  confession,  non  sum  informatus,  or 
nihil  dicit,  entered  in  the  said  respective  courts  of  Michaelmas 
and  Hilary  terms,  before  the  last  day  of  the  ensuing  terms ;  and 
of  the  judgments  of  Easter  and  Trinity  terms,  before  the  last  day 
of  Michaelmas  term.  And  it  is  thereby  further  enacted,  "  That 
no  judgment  not  docketed,  and  entered  into  the  books  as  afore- 
said, shall  affect  any  lands  or  tenements,  as  to  purchasers  or  mort- 
gagees, or  have  any  preference  against  heirs,  executors,  or  admin- 
istrators in  their  administration  of  their  ancestors',  testators',  or 
intestates'  effects."  (a) 

24.  It  is  said  by  Sir  J.  Jekyll,  that  judgments  cannot  be  dock- 
eted after  the  time  mentioned  in  the  act,  viz.,  the  last  day  of 
the  subsequent  term  to  that  in  which  they  are  entered.  That 
the  practice  of  the  clerks,  docketing  them  after  that  time,  was 
only  an  abuse  for  the  sake  of  their  fees,  and  ineffectual  to  the 
party.  (6) 

(a)  2  Cro.  &  Jer.  318.         {b)  Forshall  v.  Coles,  infra,  §  27  ;  Hodges  v.  Templar,  C  Mod.  191. 


Title  XIV.  Estate  by  Statute  Merchant,  SfC.  s.  25—28.    521 

25.  Where  a  purchaser  had  notice  of  a  judgment  not  docketed, 
and  did  not  pay  the  full  value  of  the  estate,  the  Court  of  Chan- 
cery held  that  a  presumption  was  thereby  raised  of  an  agreement, 
on  the  part  of  the  purchaser,  to  pay  off  the  judgment. 

26.  A  bill  was  brought  to  have  satisfaction  of  a  judgment 
against  a  purchaser  of  an  equity  of  redemption,  or  to  redeem 
incumbrances,  &c.  The  defendant  insisted  on  the  statute  4  &  5 
Will.  &  Mary,  that  no  judgment  shall  affect  a  purchaser  or 
mortgagee,  unless  docketed:  the  judgment  was  not  docketed  till 
1721,  though  the  purchase  was  made  in  1718.  The  counsel  for 
the  plaintiff  insisted  that  the  defendant,  the  purchaser,  had  no- 
tice of  this  judgment,  and  an  allowance  for  it,  in  the  pur- 
chase ;  *  which  raised  an  equity  for  the  plaintiff  against  him.  *45 
Lord  Macclesfield  said  it  was  plain  the  defendant  had 
notice  of  the  judgment,  and  did  not  pay  the  value  of  the  estate ; 
that  was  a  strong  presumption  of  an  agreement  to  pay  off  the 
judgment.  And  since  the  plaintiff  could  not  proceed  at  law 
against  the  defendant,  upon  the  judgment,  for  want  of  docketing 
in  due  time,  he  ought  to  be  relieved  in  a  court  of  equity.  Decreed, 
that  the  defendant  should  pay  to  the  plaintiff  the  money  bond 
fide  due  upon  the  judgment,  (a) 

27.  In  a  subsequent  case,  Sir  Joseph  Jekyll  held,  that  notice 
of  a  judgment  not  docketed,  would  not  affect  a  purchaser ;  the 
statute  being  express  that  no  judgment,  not  docketed,  should 
affect  any  lands  or  tenements.  This  doctrine  is  now  altered  ; 
and  it  has  been  determined  by  Lord  Eldon,  in  the  following  case, 
that  a  purchaser  is  bound  by  notice  of  a  judgment,  though  not 
docketed,  (b) 

28.  The  bill  stated  that  W.  Davis,  being  seised  in  fee  of  lands, 
agreed  to  sell  them  to  the  defendant ;  that  the  abstract  having 
been  delivered,  the  defendant  was  satisfied  with  the  title,  except 
in  respect  of  a  judgment  which  was  subsisting  against  Davis  : 
that  the  defendant  contended  that,  having  notice  of  the  judgment, 
the  plaintiff's  title  was  not  such  as  a  purchaser  could  safely  take. 
The  bill  further  stated,  that  the  judgment  was  not  docketed,  and 
therefore  was  not,  by  law,  any  lien  upon  the  estate  ;  and  that  the 
defendant's  having  notice  of  the  judgment  did  not  afford  any  just 
reason  why  the  estate  should  be  liable  to  it.     Lord  Eldon  said 

(a)  Thomas  v.  Plcdwell,  7  Vin.  Ab.  53. 

(6)  Forshall  v.  Coles,  7  Vin.  Ab.  5 ;  Sugd.  Vend.  Appendix,  19. 

44* 


522  Title  XIV.     Estate  by  Statute  Merchant,  Sfc.  s.  28—33. 

the  opinion  he  had  formed  on  this  case,  after  much  consideration, 
was,  that  notice  of  the  judgment  would  bind  the  purchaser ;  by 
analogy  to  the  case  of  the  register  acts,  (a) 

46  *  *  29.   Where  the  money  borrowed  on  the  security  of  a 

statute  merchant,  statute  staple,  or  recognizance,  is  not 

paid,  the  cognizee  or  creditor  is  entitled  to  a  writ  of  execution,  by 

which  the  lands  of  the  debtor  are  delivered  to  him  upon  a 

47  *       reasonable  extent ;  *  that  is,  upon  a  reasonable  valuation, 

to  be  made  by  a  jury,  upon  a  writ  of  extendi  facias,  with 
this  difference,  that  upon  a  statute  merchant  the  sheriff  may 
deliver  the  lands  to  the  cognizee  immediately.  But  upon  a 
statute  staple  or  recognizance,  the  sheriff  must  first  seize  the  lands 
into  the  king's  hands,  and  then  the  cognizee  must  have  a  liberate 
to  get  them.  So  that,  in  this  respect,  a  statute  merchant  is  pref- 
erable to  a  statute  staple  or  recognizance. 

30.  Even  lands  purchased  after  the  acknowledgment  of  a  stat- 
ute or  recognizance  are  bound  by  it ;  and  execution  may  be  had 
against  the  heir  of  the  cognizor  and  the  terre-tenants.  And  if  the 
cognizee  only  takes  part  of  the  lands,  it  will  be  good  ;  for  he  may 
dispense  with  the  rigor  of  the  law,  if  he  pleases,  (b) 

31.  If  the  debtor  sells  all  or  any  part  of  his  lands,  after  he  has 
acknowledged  a  statute  or  recognizance,  still  the  cognizor  may 
extend  them,  by  the  words  of  the  statute  ;  for  otherwise  it  would 
be  in  the  power  of  the  cognizor,  by  his  alienation,  to  frustrate  the 
security,  (c) 

.•  32.  Where  the  cognizor,  after  the  acknowledgment  of  the  stat- 
ute, conveys  his  lands  to  several  persons,  the  cognizee  must  then 
sue  out  execution  of  all  the  lands  ;  for  it  would  be  unreasonable  to 
load  one  of  the  purchasers  only  with  the  whole  debt,  when  the 
burden  ought  to  be  actually  distributed  on  all;  therefore  the- 
person  aggrieved  may  relieve  himself,  (d) 

33.  An  alien  friend  merchant  may  extend  lands  upon  a  statute, 
which  the  king  shall  not  have  upon  office,  and  for  which  the 
merchant  shall  have  an  assise,  in  case  of  ouster ;  for  the  main 
end  and  design  of  the  statute  merchant  and  statute  staple  was  to 
promote  and  encourage  trade,  by  providing  a  sure  and  sjfeedy 

(«)  Davis  v.  Strathmore,  16  Yes.  419;  3  Sim.  285;  Tit.  32,  c.  29. 

(6)  Winch.  83;  Harbert's  case,  3  Rep.  11.  (c)  2  Roll.  Ab.  472,  pi.  3. 

(d)  3  Rep.  12,  b. 


Title  XIV.    Estate  by  Statute  Merchant,  8cc.  s.  33—37.    523 

remedy  for  merchant  strangers,  as  well  as  natives,  to  recover 

their  debts,  (a) 

*  34.  Where  a  debt  secured  by  a  judgment  is  unpaid,  *  48 
the  creditor  may  sue  out  a  writ  of  elegit,  upon  which  the 
sheriff  is  to  empanel  a  jury,  who  are  to  make  inquiry  of  all  the 
goods  and  chattels  of  the  debtor,  and  to  appraise  the  same ;  also 
to  inquire  as  to  his  lands  and  tenements,  and  upon  such  inquisi- 
tion to  set  out  and  deliver  a  moiety  of  the  lands  to  the  plaintiff, 
by  metes  and  bounds.  (U) 

35.  If  the  sheriff  delivers  more  than  a  moiety  of  the  debtor's 
land,  and  this  appears  upon  the  return,  the  execution  is  totally 
void.  For  the  sheriff  has  only  a  circumscribed  authority,  which 
he  cannot  exceed ;  so  that  what  is  extended  beyond  a  moiety, 
being  without  authority,  and  there  being  no  possibility  of  separa- 
ting it  from  the  rest,  the  whole  is  void,  as  if  nothing  had  been 
extended.  Carthew,  in  his  report  of  this  case,  makes  Lord  Holt 
say,  that  the  inquisition  is  not  void,  but  voidable  only  by  writ  of 
error,  or  by  an  audita  querela,  (c) 

36.  Although  no  more  than  a  moiety  of  the  lands  of  a  debtor 
can  be  taken  by  an  elegit;  yet  if  tivo  judgments  are  obtained  by 
the  same  person,  he  may  extend  both  moieties,  which  will  be  good. 
But  if  A  and  B  recover  severally  against  C,  and  A  sues  out  an 
elegit,  and  has  a  moiety  of  the  lands  delivered  to  him,  and  then 
B  sues  out  an  elegit,  he  can  only  have  a  moiety  of  the  lands 
which  remain,  not  the  whole,  (d) 

37.  It  was  formerly  held  by  some,  that  upon  an  elegit  the 
sheriff  was  obliged  to  deliver  a  moiety  of  each  particular  farm 
and  tenement.  But  in  a  modern  case  the  Court  of  King's  Bench 
determined  that  the  return  was  good,  though  separate  lands  were 
extended ;  provided  it  did  not  appear  that  they  amounted  in  value 
to  more  than  a  moiety  of  the  whole  ;  for  otherwise  not  only  a 
moiety  of  every  farm  and  tenement,  but  even  a  moiety  of  every 
close  and  field,  must  be  delivered  to  the  creditor.  Nor  could  the 
writ  be  executed  according  to  this  idea,  but  by  delivering  an  un- 
divided moiety ;  which  was  entirely  contrary  to  the  meaning  of 
the  statute,  for  the  moiety  to  be  extended  must  be  set  out  by 
metes  and  bounds,  (e) 

(«)  Dyer,  2  b.  pi.  8.  (b)  Ante,  §15;  10  Yin.  Ab.  590. 

(c)  Puttenr.  Penbeck,  1  Salk.  563;  Carth.  453. 

(d)  Gilb.  Ex.  5G ;  Hard.  23.    Huyt  v.  Cogan,  Cro.  Eliz.  482. 

(e)  Demi  V.  Abingdon,  Doug.  473.    Fenny  v.  Durrant,  1  Barn.  &  Aid.  40. 


524    Title  XIV.     Estate  by  Statute  Merchant,  Sfc.  s.  38 — 40. 

38.  Lands  purchased  after  the  obtaining'  of  a  judgment  may  be 
taken  upon  a  writ  of  elegit ;  and  it  is  laid  down  in  1  Roll. 

49  *  Ab.  *  892,  pi.  14  and  16,  that  execution  may  be  sued  of 
any  land  which  the  debtor  had  by  purchase  after  the  judg- 
ment, though  he  had  aliened  it  before  execution.  So  that  a  judg- 
ment binds  all  lands  whereof  the  debtor  was  seised  at  the  time 
when  the  judgment  was  entered,  or  which  he  afterwards  acquires ; 
and  no  subsequent  act  of  his,  not  even  an  alienation,  for  a  valua- 
ble consideration,  to  a  purchaser,  without  notice  of  the  judgment, 
will  avoid  it.  (a)1 

39.  It  should,  however,  be  observed,  that  any  alienation  of 
the  legal  estate,  prior  to  the  acknowledgment  of  a  judgment,  is 
good  against  it ;  even  an  alienation  in  equity  will  suffice.  Thus 
Lord  Cowper  has  said,  that  articles  made  for  a  valuable  consider- 
ation, and  the  money  paid,  will  in  equity  bind  the  estate,  and 
prevail  against  any  judgment  creditor,  mesne  between  the  articles 
and  the  conveyance,  (b) 

40.  No  execution  can  be  sued  against  the  heir,  upon  a  recog- 
nizance or  judgment,  during  his  minority.  And  where  a  year 
and  a  day  have  elapsed,  from  the  entry  of  the  judgment,  the 
Court  concludes,  primd  facie,  that  the  judgment  is  satisfied  ;  but 
will  grant  a  writ  of  scire  facias  for  the  defendant  to  show  cause 
why  the  judgment  should  not  be  revived,  (c) 

(a)  Brace  v.  Duch.  of  Marlborough,  2  P.  Wms.  492;  2  Inst.  396. 

(1)  Finch  v.  Winchelsea,  1  P.  Wms.  277.  (c)  1  Inst.  290,  a.     3  Bl.  Comm.  421. 


i  This  position  was  examined  and  the  cases  in  support  of  it  reviewed  with  great 
learning  and  ability,  by  Yeates,  J.,  in  Colhoun  v.  Snider,  6  Binn.  135,  138 — 144,  and 
the  rule  shown  to  be  at  least  questionable,  as  English  law  ;  and  in  that  case  the  con- 
trary was  held  as  the  law  of  Pennsylvania.  [See  also  Lea  v.  Hopkins,  7  Barr.  492 ; 
Packer's  Appeal,  6  lb.  277  ;  Moorchead  v.  McKinney,  9  lb.  265.]  The  only  author- 
ity cited  by  Rolle,  is  the  case  of  Sir  John  de  Moleyns,  30  Ed.  3,  24,  which  by  no 
means  warrants  the  doctrine  he  lays  down  ;  the  remark  of  Finch,  J.,  being  only  to  the 
effect  that  the  creditor  might  have  execution  of  the  lands  then  owned  by  the  debtor, 
though  aliened  afterwards  :  and  also  of  his  after-acquired  lands ;  but  without  mention- 
ing whether  these  last  could  be  taken,  after  he  had  sold  them.  And  the  language  of 
the  Master  of  the  Rolls,  in  2  P.  W.  492,  cited  by  Mr.  Cruise,  is  only  this,  that  the  land 
afterwards  purchased  maybe  extended  on  the  judgment.  [In  Georgia,  judgments  bind 
all  the  property  owned  by  the  defendant  from  their  date,  as  well  that  subsequently  ac- 
quired, as  that  owned  at  the  signing  of  the  judgment.  Kollock  v.  Jackson,  5  Geo.  153. 
And  in  a  contest  between  attachments  and  ordinary  suits  it  is  the  judgment  and  not 
the  levy  which  determines  the  lien,  and  if  the  judgment  by  ordinary  process  be  older 
than  the  attachment  judgment,  it  takes  precedence.  Litchton  v.  McDougald,  5  Geo. 
176.  In  Arkansas,  a  judgment  is  a  lien  on  after-acquired  lands.  Bank  v.  Watson, 
8  Eng.  74.] 


Title  XIV.     Estate  by  Statute  Merchant,  SfC.  s.  41—44.    525 

41.  Lord  Coke  says,  the  king  by  his  prerogative,  is  to  be 
preferred  in  payment  of  his  duty  or  debt,  before  any  subject, 
although  the  king's  duty  or  debt  be  the  later.  And  thereupon 
the  law  gave  the  king  remedy  by  writ  of  protection  to  protect 
his  debtor,  that  he  should  not  be  sued  or  attached,  until  he  paid 
the  kind's  debt.  But  hereof  grew  some  inconvenience,  for  to  delay- 
other  persons  of  their  suits,  the  king's  debts  were  more  slowly 
paid  ;  for  remedy  thereof  it  was  enacted  by  the  statute  25  Edw.  III. 
c.  19,  that  the  other  creditors  may  have  their  actions  against  the 
king's  debtor,  and  proceed  to  judgment,  but  not  to  execution,  (a) 

42.  Lord  Chief  Baron  Gilbert  says,  if  the  king's  debt  be  prior 
upon  record,  it  binds  the  lands  of  the  debtor,  into  whose  hands 
soever  they  come,  because  it  is  in  the  nature  of  an  original  feudal 
charge  on  the  land  ;  and  therefore  must  subject  every  one  who 
claims  under  it.  But  if  the  land  were  aliened  in  the  whole,  or 
in  part,  before  the  debt  contracted,  such  alienee,  claiming  prior 
to  the  charge,  would  not  be  subject  to  it.  (b) 

43.  If  the  subject's  debt  be  by  statute  or  judgment, 

prior  to  *  the  king's  debt,  and  the  king  extends  the  land  *  50 
first,  the  subject  shall  not,  by  any  after  extent,  take  them 
out  of  his  hands.  But  if  such  judgment  be  extended,  and  the  sub- 
ject has  the  possession  delivered  to  him  by  a  liberate,  he  shall 
hold  it  discharged  from  the  king's  debt.  If  the  king's  debt 
comes  before  the  possession  by  liberate,  the  king's  extent  shall 
be  preferred;  and  the  subject  must  wait  till  the  king's  debt  is 
satisfied,  (c) 

44.  The  reason  of  the  difference  is,  because  the  king's  debt  is 
in  the  nature  of  a  feudal  charge,  which  if  it  comes  on  the  lands, 
before  the  property  of  them  is  altered,  it  seizes  on  them,  as  it 
might  have  done  for  the  original  service  at  first  imposed.  But 
if  there  had  been  a  lawful  alienation  before  such  debt,  there  it  is 
not  the  feud  of  the  tenagt ;  therefore  such  charge  cannot  affect 
it;  so  that  if  there  be  a  precedent  judgment  or  statute,  and  a 
liberate  pursuant,  before  the  king's  extent  comes  down  ;  there  it 
cannot  charge  the  lands,  because  the  property  is  altered  by  the 
extent  of  the  subject,  which  relates  to  the  time  when  the  judg- 
ment was  given,  or  statute  staple  acknowledged ;  for  the  extent 
and  liberate  of  the  subject  was  only  executing  such  judgment  or 

(a)  1  Inst.  131,  b.  (b)  Gilb.  Ex.  19.     Tit.  1,  §  60.  (c)  Idem. 


526     Title  XIV.    Estate  by  Statute  Merchant,  Sfc.  s.  44—47. 

statute  on  the  land.  The  execution  was  relative  to  that  judg- 
ment, which  was  prior  to  the  king's  charge  :  so  there  was  a 
complete  alteration  of  property,  prior  to  the  king's  charge,  and 
before  the  extent  came  down. 

45.  If  the  king's  extent  had  come  before  the  liberate,  he  had 
charged  the  lands  whilst  it  was  in  the  hands  of  his  debtor,  and 
then  his  charge  would  be  satisfied,  as  if  it  had  been  in  the  first 
feudal  donation  ;  for  nothing  can  hinder  the  king's  charge,  but 
what  amounts  to  a  precedent  alienation  ;  but  so  far  as  there  is  a 
precedent  alienation,  they  are  not  the  lands  of  his  debtor ;  a 
liberate  in  pursuance  of  a  preceding  judgment  amounting  to 
an  alienation  of  the  land,  before  it  becomes  charged  to  the 
king,  (a) 

46.  The  lien  upon  the  lands  by  the  subject's  debt  came  in  by 
the  statute  of  Westminster  2.  Before  that,  a  judgment  did  not 
bind  the  land.  But  the  king's  debt  bound  the  land  before  that 
statute ;  and  as  that  statute  did  not  touch  the  prerogative,  there- 
fore the  king  has  a  power  to  levy  upon  the  lands,  notwithstand- 
ing the  preceding  lien  by  judgment :  therefore  the  king  may  seize 
lands  that  are  bound  by  a  preceding  judgment,  whilst  the  lands 

are  in  the  custody  of  the  law,  on  the  elegit  or  extent ; 
51  *       *  and  before  they  are  actually  delivered  out  to  the  credi- 

itor,  by  the  liberate,  as  a  satisfaction  for  his  debt.  But 
when  they  were  actually  delivered  out  to  the  creditor  by  the 
liberate,  they  then  no  longer  belonged  to  the  debtor,  since  the 
king's  writ  had  delivered  them  over,  for  satisfaction  of  a  debt 
that  was  prior  to  the  king's ;  for  the  creditor  did  not  take  them 
under  the  burden  of  the  king's  debt,  because  his  lien  was  ante- 
cedent to  the  king's  debt.  And  it  were  repugnant  to  construe 
him  to  take  the  land,  sub  onere  of  the  king's  debt,  when  he  took 
in  satisfaction  of  a  debt  precedent,  (b) 

47.  By  the  statute  33  Hen.  VIII.  c.39,  §  74,  it  is  enacted, 
that  where  any  suit  is  commenced,  or  any  process  awarded  for 
the  king,  for  the  recovery  of  any  of  his  debts,  the  same  suit  and 
process  shall  be  preferred  before  the  suit  of  any  person  or  per- 
sons. And  that  the  king,  his  heirs,  or  successors,  shall  have  first 
execution  against  any  defendant  or  defendants,  of  and  for  his 
said  debts,  before  any  other  person  or  persons  ;    so  always  that 

(a)  Gilb.  Ex.  91,  tit.  1,  §  69. 

(b)  Gilb.  Ex.  91,  tit.  1,  §  69.     {Ante,  §  15,  16.)     Curson's  case,  3  Leon.  239.     4  Id.  10. 


Title  XIV.   Estate  by  Statute  Merchant,  SfC.  s.  47—49.    527 

the  king's  suit  be  taken  and  commenced,  or  process  awarded  for 
the  said  debt,  at  the  king's  suit,  before  judgment  given  for  the 
said  other  person  or  persons.1 

48.  This  statute  is  not  confined  in  its  operation  to  bond  debts 
only,  but  extends  to  all  debts  and  executions  at  the  suit  of  the 
king.  It  is,  however,  held  to  be  restrictive  on  the  old  prerogative ; 
for  the  words,  "  So  always  that  the  king's  suit,"  &c,  make  a  con- 
dition precedent.  Hence,  therefore,  a  judgment  and  execution  by 
elegit,  before  any  suit  or  process  commenced  by  the  king,  shall 
be  preferred  to  the  extent  of  the  king,  issuing  on  a  bond  debt, 
bearing  date  before  the  subject's  judgment,  and  assigned  to  the 
king  before  the  subject's  execution,  (a) 

49.  All  estates  in  fee  simple  in  possession  may  be  extended  on  a 
statute  or  recognizance,  or  taken  by  writ  of  elegit,  as  also  all 
estates  in  reversion  expectant  on  leases  for  lives  or  years.  And 
in  case  of  an  elegit,  the  plaintiff  shall  have  a  moiety  of  the 
reversion,  and  a  moiety  of  the  rent.  Thus,  it  was  resolved  in 
10  Jac,  that  if  a  person  leases  for  years,  rendering  rent,  the  re- 

(a)  Cecil's  case,  7  Eep.  19,  b.     Att.  Gen.  v.  Andrew,  Hard.  23. 

1  The  Constitution  of  the  United  States  gives  power  to  Congress  to  pass  laws  giving 
to  the  United  States  a  preference  and  priority  of  payment  of  their  debts  in  all  cases  of 
the  death,  insolvency,  or  bankruptcy  of  the  debtor.  This  power  Congress  has  exercised 
in  various  statutes  ;  see  LL.  U.  S.  July  31,  1799,  Bioren'sed.  Vol.  II.  ch.  5,  §  21  ;  Aug. 
4,  1790,  Ibid.  ch.  62,  §  45  ;  May  2,  1792,  Ibid.  ch.  128,  §  18,  in  regard  to  revenue  bonds  ; 
and  March  3,  1797,  Ibid.  ch.  368,  §  5,  in  regard  to  all  public  debtors,  of  every  descrip- 
tion, and  by  every  mode  of  indebtment.  See  also,  Stat.  March  2,  1799,  Ibid.  Vol.  III. 
ch.  128,  §  65.  The  priority  here  given  is  only  a  priority  of  payment ;  it  creates  no  lien  on 
the  estate  of  the  debtor ;  and  therefore  does  not  overreach  any  bond  fide  alienation 
made  before  the  priority  attached.  And  it  applies  only  to  cases  where  the  debtor  had 
become  actually  and  notoriously  insolvent,  and  being  unable  to  pay  his  debts,  had 
made  a  voluntary  assignment,  not  of  part,  but  of  all  his  property,  for  the  benefit  of  all 
his  creditors ;  or,  having  absconded  or  absented  himself,  his  property  had  been  attached 
by  process  of  law.  A  bond  fide  conveyance  of  a  part  of  his  property,  to  secure  a  fair 
creditor,  is  not  affected  by  these  statutes.  Fisher  v.  Blight,  2  Cranch,  358;  U.  States 
v.  Hooe,  3  Cranch,  73.  It  is  the  general  assignment  of  all  the  debtor's  property,  either 
by  his  own  act,  or  by  act  of  law,  and  which  is  carried  into  execution  by  the  assignees, 
which  gives  effect  to  this  priority.  And  if  the  object  was  a  general  assignment,  the 
omission  of  a  small  part,  either  fraudulently,  to  evade  the  statute,  or  unintentionally 
and  by  mistake,  will  not  defeat  the  priority.  U.  States  v.  Monroe,  5  Mason,  R.  572, 
574;  U.  States  v.  Hawkins,  16  Mart.  317.  See  ante,  tit.  1,  §  63,  note  ('),  where 
this  subject  is  more  particularly  stated.  See  also  4  Kent,  Comm.  242—248.  [The 
priority  of  the  United  States  does  not  affect  or  supersede  a  mortgage  on  land,  nor  a 
judgment  perfected  by  the  issue  of  an  execution  and  levy  upon  real  estate.  United 
States  v.  Duncan,  12  111.  523.] 


528     Title  XIV.    Estate  by  Statute  Merchant,  Sfc.  s.  49—54. 

version  may  be  extended  upon  an  elegit,  during  the  lease ;  and 
the  tenant  by  elegit  shall  have  a  moiety  of  the  rent,  (a) 

50.  An  estate  tail  may  be  extended,  during  the  life  of  the 
tenant  in  tail.     But  if  execution  be  sued  out  against  the 

52  *       issue,  *  upon  a  statute  or  judgment  acknowledged  by  the 
ancestor,  the  issue  may  avoid  it   by  assise,  or  writ  of 
audita   querela;    because  a  tenant  in  tail  can  only  charge  his 
estate  during  his  life,  (b) 

51.  A  rent-charge  may  be  extended  on  an  elegit;  for  the  land 
being  made  subject  to  the  execution,  includes  every  thing  issuing 
out  of  it.  And  in  this  case  the  party  may  distrain  and  avow, 
though  the  tenant  never  attorned ;  for  the  law,  creating  his  estate, 
gives  him  all  means  necessary  for  the  enjoyment  of  it.  (c) 

52.  The  sheriff  may,  upon  a  writ  of  elegit,  either  extend  a  term 
for  years,  that  is,  deliver  a  moiety  thereof  to  the  cognizee,  or  sell 
the  whole  term,  as  a  part  of  the  personal  estate,  to  the  plaintiff,  at 
a  gross  sum,  appraised  and  settled  by  a  jury,  (d) 

53.  If  the  defendant  tenders  the  money  at  the  time  of  the 
appraisement,  and  before  the  delivery  of  the  term,  or  even  after, 
in  court,  the  term  is  saved.  And  if  it  be  delivered  after,  the 
defendant  is  entitled  to  a  writ  of  audita  querela.  If  no  such 
tender  be  made,  the  property  is  altered  by  the  delivery  of  the 
sheriff,  and  the  plaintiff  may  either  keep  or  dispose  of  it,  without 
being  accountable  for  the  profits.  If  the  term  be  extended  at  an 
annual,  and  not  a  gross  value,  the  plaintiff  is  accountable  for  the 
profits.  And  if  he  receives  the  debt  out  of  the  term,  before  it 
expires,  the  defendant  shall  be  restored  to  the  term  itself,  (e) 

54.  Lord  Hardwicke  has  said,  that  where  an  execution  by 
elegit  or  fieri  facias  is  lodged  in  a  sheriff's  hands,  it  binds  goods 
from  that  time,  except  in  the  case  of  the  crown ;  and  a  leasehold 

estate  is  also  affected  from  that  time.  If  the  debtor,  subsequent 
to  this,  makes  an  assignment  of  the  leasehold  estate,  the  judg- 
ment creditor  need  not  bring  a  suit  in  ejectment,  to  come  at  the 
leasehold  estate,  by  setting  aside  the  assignment ;  but  may  pro- 
ceed at  law  to  sell  the  term ;  and  the  vendee,  who  is  generally  a 

(a)  Campbell's  case,  1  Roll.  Ab.  894. 

(b)  Ashburnham  v.  St.  John,  Cro.  Jac.  85.    Tit.  2,  c.  2,  §  33. 

(c)  Moo.  32,  No.  104.  (d)  2  lust.  395.    8  Rep.  171,  a. 
(e)  Gilb.  Ex.  34.    2  Saund.  R.  68,  f. 


Title  XIV.    Estate  by  Statute  Merchant,  Sfc.  s.  54—58.   529 

friend  of  the  plaintiff,  mil  be  entitled  at  law  to  the  possession, 
notwithstanding  such  assignment,  (a) 

55.  It  is  enacted,  by  the  16th  section  of  the  Statute  of  Frauds, 
"  That  no  writ  of  fieri  facias,  or  other  writ  of  execution,  shall 
bind  the  property  of  the  goods  of  the  person  against  whom 
*such  writ  of  execution  is  sued  forth,  but  from  the  time  *53 
that  such  writ  shall  be  delivered  to  the  sheriff,  &c,  to  be 
executed.  And  for  the  better  manifestation  of  the  said  time,  the 
sheriff,  &c,  shall,  upon  the  receipt  of  any  such  writ,  indorse  upon 
the  back  thereof  the  day  of  the  month  and  year,  whereon  he  or 
they  received  the  same." 

56.  In  consequence  of  this  statute,  it  has  been  generally  held 
that  if  a  term  for  years  be  assigned  to  a  bond  fide  purchaser, 
before  execution  is  actually  sued  out,  and  delivered  to  the  sheriff, 
it  cannot  afterwards  be  taken  by  a  creditor.  But  this  doctrine 
has  been  doubted  by  the  late  Mr.  Sergeant  Hill,  who  appears  to 
have  been  of  opinion  that  the  reasoning  deduced  from  the  case 
of  an  execution  by  fieri  facias,  did  not  apply  to  a  writ  of  elegit; 
and  that  the  Statute  of  Frauds  had  not  altered  the  law,  with 
respect  to  an  elegit.  (V) 

57.  It  has  been  already  stated  that  by  the  Statute  of  Frauds, 
trust  estates  of  freehold  may  be  taken  in  execution  on  an  elegit, 
for  the  debts  of  the  cestui  que  trust;  but  that  if  a  trustee  has  con- 
veyed the  lands,  by  the  direction  of  the  cestui  que  trust,  before 
execution  sued,  though  he  was  seised  in  trust  for  the  debtor,  at 
the  time  of  the  judgment,  the  lands  cannot  be  taken  in  execution  ; 
for  the  words  of  the  statute  are, — "  at  the  time  of  the  said  execu- 
tion sued,"  which  refer  to  the  seisin  of  the  trustee,  (c) 

58.  This  doctrine  appears  to  have  been  settled  in  the  following 
case : — 

H.  Chamberlain  being  cestui  que  trust  in  fee  of  lands,  J.  Board- 
man,  the  lessor  of  the  plaintiff,  recovered  a  judgment  against  him 
for  £160.  Chamberlain  borrowed  <£600  of  the  defendant  Coles  ; 
and  for  securing  that  sum,  the  trustee  of  the  legal  estate,  by  the 
direction  of  Chamberlain,  mortgaged  the  premises  to  Coles  for 
500  years.     Boardman  took  out  execution  by  writ  of  elegit ;  the 

(a)  Bunion  v.  Kennedy,  3  Atk.  739.  Jeanes  v.  Wilkins,  1  Ves.  195.  Fovth  v.  Duke  of 
Norfolk,  4  Mad.  503. 

(b)  Rigge  on  Register.     Sugd.  Vend.  c.  16,  §  4,  div.  2. 

(c)  Tit.  12,  c.  2. 

vol.  i.  45 


530     Title  XIV.   Estate  by  Statute  Merchant,  Sfc.   s.  58—64. 

sheriff,  after  an  inquisition,  by  which  it  was  found  that  Chamber- 
lain was  seised  in  fee,  extended  one  moiety,  and  delivered  it  to 
the  lessor  of  the  plaintiff.  The  doubt  was,  whether  he  had  any 
title  by  the  Statute  of  Frauds ;  after  argument  by  Comyns  and 
Sir  C.  Phipps,  it  was  determined  by  Mr.  Justice  Tracey,  that  the 
execution  was  not  good  ;  for  the  words,  "  at  the  time  of  the  said 
execution  sued,"  refer  to  the  seisin  of  the  trustee.     Therefore,  if 

the  trustee  had  conveyed  the  land,  before  the  execution 
54  *      sued,  though  he  was  seised  in  trust  for  *the  defendant,  at 

the  time  of  the  judgment,  the  lands  could  not  be  taken  in 
execution.  Sir  Edward  Northey  said,  that  since  the  act,  such 
construction  had  been  thought  agreeable  to  the  statute  ;  though 
he  did  not  know  that  it  ever  had  been  judicially  determined. 
A  case  was  mentioned  by  Mr.  Justice  Tracey,  from  Sergeant 
Cheshire's  notes,  where  this  opinion  seemed  to  be  allowed  by 
Lord  Trevor,  and  not  contradicted  by  the  Court,  (a) 

59.  It  is  also  observable  that  Lord  Chief  Baron  Comyns,  who 
argued  and  reported  this  case,  states  the  law  accordingly  in  his 
Digest ;  where,  after  mentioning  several  things  not  liable  to  exe- 
cution, he  says,  "  Nor  since  the  statute  29  Cha.  II.  c.  3,  lands 
which  the  trustee  has  aliened  before  execution  ;  for  they  are  not 
bound  by  the  judgment."  (b) 

60.  There  are  several  kinds  of  real  property  which  are  not 
liable  to  an  extent  under  a  statute,  recognizance,  or  judgment. 
Thus  an  advowson  in  gross  cannot  be  extended  on  an  elegit  for 
reasons  which  will  be  given  in  a  subsequent  title,  (c) 

61.  A  writ  of  elegit  does  not  lie  of  the  glebe  belonging  to  a 
parsonage,  or  vicarage,  or  of  the  churchyard ;  for  each  of  these 
are  solum  Deo  consecratum.  (d) 

62.  An  estate  in  joint  tenancy  cannot  be  extended  after  the 
death  of  the  joint  tenant,  who  acknowledged  the  judgment ;  but 
an  estate  in  coparcenary  or  in  common  may  be  extended,  (e) 

63.  It  has  been  held  in  a  modern  case,  that  a  mere  equitable 
interest  in  a  term  for  years,  cannot  be  extended,  nor  is  an  equity 
of  redemption  extendible.  (/) 

64.  If  a  trustee  acknowledges  a  judgment  or  statute,  though  at 

(a)  Hunt  v.  Coles,  Com.  It.  226.     See  Doe  v.  Greenhill,  4  Bar.  &  Aid.  684. 

(6)  Corn.  Dig.  tit.  Execution,  c.  14.  (c)  Tit.  21. 

(d)  Jenk.  207.  (e)  Tit.  18,  c.  1.     Tit.  19  &  20. 

(/)  Scott  v.  Scholey,  8  East,  467.    Tit.  15,  c.  2. 


Title  XIV.   Estate  by  Statute  Merchant,  8cc.   s.  64—69.    531 

law,  these  are  liens  upon  the  estate  ;  yet,  in  equity,  they  will  not 
affect  it,  because  a  judgment  is  only  a  general  security,  not  a 
specific  lien  on  the  estate,  (a) 

65.  Upon  the  entry  of  the  cognizee  into  the  lands  extended,  he 
is  called  tenant  by  statute  merchant,  statute  staple,  or  elegit ;  and 
although  the  estates  thus  acquired  are  uncertain,  as  to  their  dura- 
tion, being  determinable  only  on  payment  of  the  debt,  and  that 
persons  holding  such  estates  shall  have  the  same  remedy, 

by  assise,  as  freeholders,  yet  they  are  but  chattels  which  *  55 
vest  in  executors  or  administrators,  (b) 

66.  Persons  holding  estates  of  this  kind  are  punishable  for 
waste  by  writ  of  waste,f  or  by  an  action  of  account ;  in  which 
case  the  debtor  shall  have  a  venire  facias  ad  computandum  for  the 
waste,  and  recover  damages  for  the  surplus,  (c) 

67.  It  was  formerly  held  that  these  estates,  like  terms  for  years, 
might  be  barred  by  a  recovery,  suffered  by  the  persons  who  had 
the  freehold  ;  but  they  are  protected  by  the  statute  27  Hen.  VIII. 
c.  15,  from  the  effects  of  a  recovery  of  the  freehold,  (d) 

68.  The  estates  acquired  by  the  execution  of  a  statute  recog- 
nizance, or  elegit,  must  be  executed  by  an  actual  entry  of  the 
cognizee ;  for  till  entry  he  has  but  a  bare  right,  which  is  not 
assignable  ;  so  that  although  he  should  release  all  his  right  to  the 
land,  yet  he  may  extend  it  after.1  All  he  acquires  is  a  lien  on 
the  land ;  but  it  is  not  certain  whether  he  will  ever  make  use  of 
it ;  for  he  may  recover  the  debt  out  of  the  goods  of  the  cognizor 
by  a  scire  facias,  or  take  his  body ;  and  then,  during  the  debtor's 
life,  he  can  have  no  execution. 

69.  Upon  the  death  of  the  cognizee  of  a  statute,  his  adminis- 
trator sued  out  an  extent ;  and  the  liberate  being  returned,  he 
assigned  over  the  lands  without  making  an  actual  entry ;  the 
question  was,  whether  the  assignment  was  good  or  not.  It  was 
determined  that  the  assignment  was  void ;  for  by  the  return  of 
the  liberate  he  had  accepted  of  the  possession,  and  was  estopped 
to  say  the  contrary.  Then,  when  the  owner  still  continued  in 
possession,  ib  turned  the  possession  which  the  administrator  had 

(a)  1  P.  Wins.  278.                                                               {b)  1  Inst.  42,  a.     2  Inst.  39G. 
(c)  Fitz.  N.  B.  58  H.                                                             ((/)  Tit.  36. 
* _— 

[t  Abolished  after  the  31st  day  of  December,  1834,  by  Stat.  3  &  4  Will.  4,  c.  27, 
§36. 
1  See  note  at  the  end  of  this  title. 


532     Title  XIV.     Estate  by  Statute  Merchant,  Sfc.  s.  69—73. 

accepted  by  the  liberate  to  a  mere  right,  which  was  not  assign- 
able. Nor  was  it  like  an  inter  esse  termini,  which  the  lessee 
might  assign  over  before  entry ;  because  in  that  case  the  lessor 
is  the  principal  agent,  and  has  done  every  thing  on  his  part  to 
transfer  an  interest  to  the  lessee,  which  he  may  execute  at 
pleasure,  (a) 

70.  The  sheriff  does  not  now,  as  formerly,  on  a  writ  of  elegit, 
deliver  actual,  but  only  legal  possession  of  a  moiety  of  the  lands. 
In  order  to  obtain  possession,  the  plaintiff  must  enter;  or,  if  pre- 
vented from  taking  possession  by  entry,  he  must  proceed  by 

ejectment ;  in  which  he  is  obliged  not  only  to  prove  the 
56*      judgment,  *and   by   the  judgment    roll,   that   an   elegit 

issued,  and  was  returned ;  but  must  also  prove  the  writ  of 
elegit  by  a  copy  thereof,  as  well  as  the  inquisition  that  was 
taken  thereon,  (b) 

71.  Where  a  plaintiff  in  ejectment  claims  under  an  elegit,  and 
there  is  a  person  in  possession,  under  a  lease  made  prior  to  the 
judgment,  upon  which  the  elegit  was  sued  out,  he  cannot  re- 
cover. 

72.  In  ejectment  the  plaintiff  claimed  under  an  elegit  against 
one  Wharton  :  an  objection  was  taken  at  the  trial  by  the  defend- 
ants, that  the  tenant  in  possession  enjoyed  under  a  lease  granted 
to  him  by  Wharton,  prior  to  the  date  of  the  plaintiff's  judgment ; 
therefore  that  the  plaintiff  could  not  succeed  in  this  ejectment. 
To  this  it  was  answered,  on  the  part  of  the  lessor  of  the  plaintiff, 
that  he  had  given  the  tenant  notice  he  did  not  mean  to  disturb 
his  possession,  his  object  being  only  to  get  into  the  receipt  of  the 
rents  and  profits  of  the  estate ;  and  that  the  defendants  ought, 
therefore,  not  to  be  permitted  to  set  up  this  objection.  Mr.  Jus- 
tice Lawrence,  before  whom  the  cause  was  tried,  was  of  opinion 
that  the  party  who  had  the  legal  estate,  must  prevail  in  an  eject- 
ment; and  that,  as  the  tenant's  title  accrued  prior  to  that  of  the 
lessor  of  the  plaintiff,  the  latter  could  not  succeed  in  this  eject- 
ment.    The  Court  of  King's  Bench  was  of  the  same  opinion,  (c) 

73.  It  has,  however,  been  already  stated,  that  where  there  are 
subsisting  leases  made  prior  to  the  signing  of  a  judgment,  the 
cognizee  may  extend  a  moiety  of  the  reversion,  and  of  the  rent, 
upon' his  elegit;  and  after  such  extent  he  may,  by  the  usual  pro- 
fa)  Haiinam  v.  Woodford,  4  Mod.  48.     Tit.  8,  c.  1.  (6)  Saund.  R.  69,  c.  n.  3. 

(c)  Doe  v.  Wharton,  8  T.  K.  2.    Tit.  12,  c.  3. 


Title  XIV.     Estate  by  Statute  Merchant,  Sfc.  s.  73 — 78.    533 

cess  of  ejectment,  have  all  such  remedies  to  recover  a  moiety  of 
the  rent,  as  the  cognizor  himself  might  have  had  for  the  whole 
before  the  extent,  or  will  have  after  it  for  the  other  moiety,  (a) 

74.  The  statute  13  Edw.  I.  gave  to  tenants  by  statute  mer- 
chant a  writ  of  novel  disseisin,!  in  case  their  possession  was  dis- 
turbed ;  but  if  the  eviction  was  upon  good  title,  the  cognizee  had 
no  further  remedy. 

75.  The  statute  of  the  staple  also  gives  the  creditor,  if  ousted 
of  the  lands  taken  in  execution,  a  means  of  recovering  them  by 
writ  of  novel  disseisin  ;  and  by  the  statute  23  Hen.  VIII.  c.  6,  §  9, 
persons  having  execution  of  lands  by  reason  of  a  recognizance, 
in  the  nature  of  a  statute  staple,  their  executors,  adminis- 
trators, *  or  assigns,  where  they  are  disseised,  shall  have  *  57 
like  remedy  as  persons  having  execution  on  a*  statute 
staple. 

76.  The  statute  of  Westm.  2,  c.  18,  gives  the  tenant  by  elegit 
a  writ  of  novel  disseisin,  if  ejected ;  and  after  a  writ  of  re-dis- 
seisin if  need  be.  Lord  Coke  observes,  that  his  executors  and 
administrators  shall  have  the  same  remedy,  by  the  equity  of  the 
act,  as  also  the  executors  and  administrators  of  tenants  by  statute 
merchant  and  statute  staple,  (b) 

77.  By  the  common  law,  after  a  full  and  perfect  execution 
had,  by  extent  returned,  and  entered  on  record,  the  cognizee 
could  have  no  new  extent  on  the  effects  of  the  cognizor ;  because 
there  was  once  satisfaction  given  to  the  creditor,  on  record, 
though  the  lands  had  been  recovered  from  him  before  he  had 
levied  his  debt,  (c) 

78.  This  doctrine  was  altered  by  the  statute  32  Hen.  VIII.  c.  5, 
by  which  it  is  enacted,  That  if  after  any  lands  be  delivered  in 
execution  on  just  cause,  they  shall  be  recovered,  divested,  taken, 
or  evicted  out  of  or  from  the  possession  of  any  such  person,  &c, 
before  such  times  as  the  said  tenants  by  execution,  their  executors 
or  assigns,  shall  have  fully  levied  their  debt  and  damages,  for 
which  the  said  lands,  &c,  were  taken  in  execution  ;  then  every 
such  recoveror,  obligee,  and  cognizee,  shall  have  a  scire  facias 
out  of  the  same  Court  from  whence  the  former  execution  pro- 

(a)  Campbell's  case,  ante,  §  49.  (b)  2  Inst.  397.  (c)  1  Inst.  290,  a. 


t  [Abolished  by  Stat.  3  &  4  Will.  4,  c.  27,  §  36,  37,  38.J 

45* 


534    Title  XIV.     Estate  by  Statute  Merchant,  Src.  s.  78—80. 

ceeded,  against  the  person  or  persons  on  whom  the  former  exe- 
cution was  pursued,  their  heirs,  executors,  or  assigns,  to  have 
execution  of  other  lands,  &c,  liable  and  to  be  taken  in  execution, 
for  the  residue  of  the  debt  and  damages. 

79.  Lord  Coke  has  laid  down  the  following  rules  for  the  con- 
struction of  this  statute. 

First.  Where  the  tenant  by  execution  has  a  remedy  given  him 
by  law,  after  eviction,  there  the  statute  extends  not ;  for  the  act 
says,  by  reason  whereof  the  said  recoverors,  obligees,  and  cogni- 
zees,  have  been  clearly  set  without  remedy,  &c.  For  the  body 
refers  to  the  preamble ;  and  the  party  ought  not  to  have  double 
satisfaction,  one  by  the  former  laws,  and  another  by  this  statute. 
Therefore,  if  part  of  the  land  be  evicted  from  the  tenant  by  exe- 
cution, this  statute  does  not  extend  to  it ;  because  he  shall  hold 
the  residue  till  he  is  fully  satisfied ;  if  all  be  evicted,  saving  one 
acre,  he  must  be  contented  to  hold  that ;  for  he  can  have  no  new 

execution  upon  this  statute,  (a) 
58  *  *  80.  Secondly.    If  a  man  be  bound  to  A  in  a  statute  of 

£1000,  and  by  a  later  statute  to  B  in  £100,  B  first  ex- 
tends, then  A  extends,  and  takes  the  lands  from  B,  yet.B  shall 
have  no  aid  of  the  statute  ;  because,  after  the  extent  of  A,  B 
shall  reenjoy  the  land  by  force  of  his  former  execution. 

Thirdly.  If  the  wife  of  the  cognizor  recover  dower  against  the 
tenant  by  execution,  he  shall  hold  over,  and  shall  have  no  aid  of 
this  statute. 

Fourthly.  If  a  man  puts  out  his  lessee  for  years,  or  disseises 
his  lessee  for  life ;  after,  acknowledges  a  statute,  on  which  exe- 
cution is  sued  against  him  ;  and  the  lessees  reenter;  the  tenant 
by  execution,  after  the  leases  ended,  shall  hold  over,  and  have  no 
aid  of  this  statute. 

Fifthly.  This  statute  must  not  be  taken  literally,  but  according 
to  the  meaning.  Therefore,  where  the  letter  is,  until  he,  &c.  or 
his  assigns  shall  fully  and  wholly  have  levied  the  whole  debt  or 
damages  ;  if  he  hath  assigned  several  parcels  to  several  assignees, 
yet  all  these  shall  have  the  land,  but  till  the  whole  debt  be  paid. 

Sixthly.  Where  the  words  are,  "  for  the  which  the  said  lands," 
&c,  were  delivered  in  execution ;  a  disseisor  conveys  lands  to 
the  king,  who  grants  the  same  over  to  A  and  his  heirs,  to  hold 
by  fealty  and  £20  rent,  and  after  grants   the  seigniory  to  B ; 

(a)  1  Inst.  289,  b.     11  Vin.  Ab.  32. 


Title  XIV.     Estate  by  Statute  Merchant,  SfC.  s.  80.     .  535 

B  acknowledges  a  statute,  and  execution  is  sued  of  the  seigniory. 
A  dies  without  heir;  the  cognizee  enters,  and  is  evicted  by  the 
disseisee.  He  shall  have  the  aid  of  this  statute,  yet  it  is  out  of 
the  letter  of  the  law ;  for  the  seigniory  was  delivered  in  execu- 
tion, and  not  the  tenancy.  But  he  was  tenant  by  execution  of 
those  lands,  therefore  within  the  statute. 

Seventhly.  Where  the  words  are,  "  delivered  and  taken  in 
execution,"  yet  if  after  the  liberate  the  cognizee  enter,  as  he  may, 
so  as  the  land  is  never  delivered,  yet  he  is  within  the  remedy  of 
this  statute  ;  for  he  is  tenant  by  execution. 

Eighthly.  Where  the  statute  says,  "  Then  every  such  recoveror, 
obligee,  and  cognizee,  shall,"  &c,  and  says  not,  their  executors, 
administrators,  or  assigns,  but  they  are  omitted  in  this  material 
place ;  yet,  by  a  benign  interpretation,  the  statute  shall 
extend  *  to  them,  because  they  are  mentioned  in  the  next  *  59 
precedent  clause  of  the  eviction  ;  and  the  remedy  must  by 
construction,  be  extended  to  all  the  persons  that  appear  by  the 
act  to  be  grieved. 

Ninthly.  When  the  statute  gives  a  scire  facias  out  of  the  same 
court,  &c,  if  the  record  be  removed  by  writ  of  erior  into  another 
court,  and  there  affirmed,  the  tenant  by  execution,  that  is  evicted, 
shall  have  a  scire  facias,  by  the  equity  of  this  statute,  out  of  that 
court ;  because  the  scire  facias  must  be  grounded  upon  the 
record. 

Tenthly.  Where  the  statute  gives  the  scire  facias  against  such 
person  or  persons,  &c,  that  were  parties  to  the  first  execution, 
their  heirs,  executors,  or  assigns,  &c,  this  must  not  be  taken  so 
generally  as  the  letter  is.  For  if  the  first  execution  was  had 
against  a  purchaser,  &c,  so  as  nothing  was  liable  in  his  hands 
but  the  land  recovered  ;  if  this  land  be  evicted  from  tenant  by 
execution,  no  scire  facias  shall  be  awarded  against  him,  his  heirs, 
'executors  or  assigns.  If  he  had  other  lands  subject  to  the 
execution,  then  a  scire  facias  lies  against  him  or  his  assignees, 
not  against  his  executors.  Neither  in  that  case  can  he  have  a 
scire  facias  upon  this  statute  against  the  first  debtor  or  cognizor, 
because  it  gives  it  only  against  him,  &c,  that  was  party  to  the 
first  execution,  his  heirs,  executors,  or  assigns.  But  if  there  be 
several  assignees  of  several  parcels  of  land,  subject  to  the  execu- 
tion, one  scire  facias  upon  the  statute  shall  lie  against  all  of 
them. 


536     Title  XIV.  Estate  by  Statute  Merchant,  Sfc.  s.  81—85. 

81.  As  to  the  duration  of  these  estates,  the  law  allows  the 
creditor  to  hold  them  until  he  has  received  all  his  debt.  In  the 
case  of  a  statute,  the  creditor  is  also  entitled  to  costs  ;  and  as  the 
sheriff  is  directed  to  make  a  reasonable  extent  of  the  land,  it 
follows  that  upon  a  computation  of  the  debt,  and  the  value  of 
the  lands,  it  may  be  easily  known  how  long  the  extent  may  con- 
tinue, and  at  what  time  the  debtor  will  be  entitled  to  have  his 
land  again. 

82.  In  the  case  of  any  disseisin  or  interruption  by  a  stranger, 
the  cognizee  shall  not  hold  over  the  time  of  the  extent,  but  is  to 
have  satisfaction  for  the  injury  done  him  from  such  stranger.  If 
the  cognizor  himself  gives  the  tenant  by  statute  or  elegit  any 
interruption,  or  prevents  him  from  taking  the  profits,  there  the 
tenant  may  either  hold  over,  or  bring  an  action  against  the  cog- 
nizor.    For  as  in  the  first  case  it  would  be  unreasonable 

60  *  to  *  punish  the  cognizor  for  the  act  of  a  stranger,  by  keep- 
ing him  out  of  his  lands  ;  so  in  the  last  case  it  would  be 
equally  unreasonable  to  permit  the  cognizor  by  any  act  of  his 
own,  to  turn  the  cognizee  out  of  the  land,  before  he  had  received 
his  debt,  (a)       • 

83.  If  the  tenant  by  statute  or  elegit  suffers  the  land  to  lie  waste, 
or  neglects  to  levy  the  debt  out  of  it,  these  being  his  own  acts, 
it  is  but  reasonable  he  should  suffer  by  them  ;  and  not  hold  over 
the  land  to  the  prejudice  of  the  cognizor.  On  the  other  hand, 
where  there  is  no  fault  or  negligence  in  the  cognizee,  but  he  is 
prevented  from  making  the  usual  profits  of  the  land  by  the  act  of 

God,  there  the  .cognizee  shall  hold  over  the  time  of  the  extent; 
for  it  would  be  unreasonable  to  punish  him  for  that  which  no 
industry  of  his  could  prevent,  (b) 

84.  With  respect  to  the  manner  in  which  estates  of  this  kind 
are  determined,  there  is  a  considerable  difference  between  estates 
held  by  statute  merchant,  statute  staple,  and  recognizance,  and 
those  held  under  a  writ  of  elegit. 

85.  In  the  case  of  an  extent  under  a  statute  or  recognizance, 
the  cognizor  cannot  enter,  without  suing  out  a  writ  of  scire  facias 
ad  rehabendum  terram  ;  because  in  these  cases  the  tenant  is  en- 
titled to  hold  the  land,  not  only  until  the  principal  debt  be 
levied,  but  also  all  costs,  damages,  and  expenses  arising  from  it. 
And  as  the  costs  are  not  ascertained,  no  entry,  which  is  but  an 

(a)  i  Rep.  82,  a.    2  Roll.  Ab.  478.  (&)  Idem. 


Title  XIV.  Estate  by  Statute  Merchant,  Src.  s.  85—91.     537 

act  in  pais,  can  defeat  a  matter  of  record,  until  such  costs  and 
damages  are  ascertained  by  writ  of  scire  facias,  (a) 

86.  In  the  case  of  an  extent  under  a  statute  or  recognizance, 
the  only  proper  determination  of  the  estate  held  under  it  is  the 
entry  of  satisfaction  upon  the  record,  or  perception  of  the  profits 
appearing  upon  record ;  and  a  person  having  a  second  extent  has 
no  title  of  entry  until  then,  (b) 

87.  In  the  case  of  an  elegit,  where  the  debt  is  certain,  no  dam- 
ages or  expenses  being  allowed,  and  the  annual  value  of  the 
land  being  ascertained  by  the  inquisition  and  extent,  when  a 
sufficient  time  has  elapsed  to  enable  the  creditor  to  receive  what 
was  due  to  him  from  the  rents,  there  is  no  reason  to  object  to  the 
entry  of  the  cognizor ;   which  is  therefore  lawful. 

88.  Where  the  tenant  by  elegit  is  satisfied  his  debt  by  some 
casual  profits,  the  cognizor  cannot  enter,  but  must  bring  a  scire 
facias ;  because  such  accidental  profit  does  not  appear  in  the 
valuation  of  the  lands,  which  is  stated  upon  the  record,  (c) 

*  89.  No  scire  facias  lies  upon  a  general  averment  that       *  61 
the  cognizee  has  levied  the  debt  before  the  time  of  the 
extent    expired ;    because  this   may   happen   by    the    cognizee's 
industry  in  improving  the  land,  of  which  the  debtor  cannot  take 
advantage,  (d) 

90.  But  if  the  cognizee  has  levied  part  of  the  debt  by  the 
felling  of  timber,  and  has  received  the  rest,  as  appears  from  an 
acquittance,  the  cognizor  shall  have  a  writ  of  scire  facias.  The 
reason  is,  because  the  object  of  the  extent  being  only  to  satisfy 
the  cognizee  his  reasonable  demands,  whenever  it  appears  to  the 
Court  that  they  are  answered,  whether  by  perception  of  the  profits 
or  otherwise,  they  will  grant  a  scire  facias  to  avoid  the  extent, 
and  to  reinstate  the  cognizor  in  his  former  possession  ;  since  the 
end  for  which  it  is  given  is  answered,  (e) 

91.  If  the  cognizee  has  levied  part  of  the  debt  according  to 
the  extent,  the  cognizor,  upon  tender  of  the  residue  in  court, 
shall  have  a  scire  facias  to  recover  possession  of  his  land,  within 
the  time  of  the  extent.  For  here  it  appears  on  record  how  much 
was  due  at  first,  how  much  was  paid,  and  what  remains  due. 
And  the  object  of  the  extent  being  to  satisfy  the  cognizee  of  his 
just  debt  whenever  that  appears  to  the  Court  to   have  been  done, 

(a)  4  Kep.  07,  a.    2  Roll.  Ab.  479.  (b)  Dighton  v.  Grecnvil,  tit.  35,  c.  11. 

(c)  2  Boll;  Ab.  479.  Id)  Id.  483.    Bac.  Ab.  Execution,  B.  7.  (e)  Idem. 


538     Title  XIV.    Estate  by  Statute  Merchant,  8cc.  s.  91—94. 

the  estate  shall  cease.  But  if  the  cognizor  had  tendered  the  re- 
mainder of  the  debt  out  of  court,  or  if  in  court  he  had  only  offered 
to  come  to  an  agreement  with  the  cognizee,  in  neither  of  these 
cases  would  a  scire  facias  be  granted  ;  because  it  did  not  appear 
upon  record  that  the  debt  was  paid,  (a) 

92.  A  question  having  arisen  in  the  Court  of  Chancery,  whether 
upon  an  elegit,  the  plaintiff  was  entitled  to  interest  beyond  the 
penalty  of  a  judgment,  Lord  Hardwicke  said,  that  at  law,  upon 
a  judgment  entered  up,  it  was  the  debitum  recuperation,  and 
the  stated  damages  between  the  parties ;  but  if  the  creditor  did 
not  take  out  a  fieri  facias  against  the  person  of  the  debtor,  or 
his  personal  estate,  but  extended  the  lands  by  elegit,  which  the 
sheriff  did  only  at  the  annual  value,  and  much  below  the  real, 
the  creditor  held  quousque  debitum  satisf actum  fuerit;  and  at 
law,  the  debtor  could  not,  upon  a  writ  ad  computandum,  f  insist 
upon  the  creditor's  doing  more  than  account  for  the  extended 
value.     But  if  the  debtor  came  into  a  Court  of  Equity  for  relief, 

the  Court  would  give  it  to  him,  by  obliging  the  creditor 

62  *       to  *  account  for  the  whole  that  he  had  received ;  and  as  a 

person  who  comes  for  equity  must  do  equity,  will  direct 
the  debtor  to  pay  interest  to  the  creditor,  even  though  it  should 
exceed  the  penalty.  His  lordship  said,  he  remembered  very  well, 
upon  Serjeant  Whitaker's  insisting  before  Lord  Cowper,  that  this 
would  be  repealing  the  Statute  of  Westminster,  Lord  Cowper 
said,  he  wTould  not  repeal  the  statute,  but  he  wTould  do  complete 
justice  by  letting  the  creditor  carry  on  the  interest  upon  his  debt, 
as  he  was  to  account  for  the  whole  he  had  received,  (b) 

93.  When  the  plaintiff  or  cognizee's  demand  is  satisfied  in  this 
or  in  any  other  way,  satisfaction  ought  to  be  entered  on  the  record 
of  the  judgment ;  or  else  it  should  be  assigned  to  a  trustee  for 

the  owner  of  the  lands. 

63  *  *  94.  It  has  been  already  stated,  that  a  purchaser  ivith- 

out  notice  of  any  incumbrances,  shall  protect  himself  from 
them,  by  obtaining  an  assignment  to  a  trustee  for  himself  of  a 
prior  term  for  years.  The  same  doctrine  has  been  extended  to 
statutes,  recognizances,  and  judgments,  (c) 

(a)  2  Roll.  Abr.  483.     Bac.  Abr.  Execution,  B.  7. 

(6)  Godfrey  v.  Watson.  3  Atk.  517.    2  Vent.  238.  (c)  Tit.  12,  c.  3. 

t  [Abolished  after  31  Dec.  1834,  by  Stat.  3  &  4  Will.  4,  c.  27,  §  36,  37,  38.] 


Title  XIV.  Estate  by  Statute  Merchant,  Sfc.  s.  95—97.     539 

95.  Thus,  where  a  purchaser  of  land,  incumbered  with  two 
statutes,  purchased  in  the  first,  having  no  notice  of  the  second ; 
Lord  Nottingham  said, — "  If  he  had  no  notice  of  the  second 
statute,  before  he  was  dipped  in  the  purchase,  he  shall  defend 
himself  by  the  first  statute,  whether  the  same  were  paid  off  or 
no.     If  he  can  at  law  do  it,  equity  will  not  hurt  him."  (a) 

96.  Lord  Huntingdon  bought  a  statute  affecting  certain  lands: 
two  years  after,  he  purchased  the  lands.  There  was  another 
statute  subsequent  to  that  bought  in  by  Lord  H. ;  but  prior  to 
his  purchase,  of  which  Lord  H.  had  notice  at  the  time  when  he 
bought  the  lands.  The  Court  was  of  opinion,  that  although  the 
statute  was  bought  in  before  the  purchase,  yet  that  made  no 
difference  in  the  case,  but  was  as  good  as  if  it  had  been  bought 
in  afterwards ;  therefore  Lord  H.  should  be  looked  upon  as  a 
purchaser,  having  such  security  to  protect  his  purchase,  (b) 

97.  The  effect  of  getting  in  old  statutes,  recognizances,  and 
judgments,  in  protecting  mortgagees,  will  be  discussed  in  the 
next  title.1 

(a)  Anon.  2  Cha.  Ca.  208.  (6)  Huntingdon  v.  Greenville,  1  Vern.  49. 


1  In  the  United  States,  the  liability  of  the  lands  of  a  judgment  debtor,  to  be  applied 
in  satisfaction  of  the  execution,  depends,  in  all  cases,  upon  positive  statutes,  except 
where  the  writ  of  elegit  has  been  immemorially  used.  In  Virginia,  the  Statute  of 
Wcstm.2,  13  Ed.  1,  c.  18,  giving  this  remedy,  was  recognized,  from  the  settlement  of 
the  colony,  as  part  of  the  common  law ;  and  it  is  still  in  force,  in  its  main  features,  as 
the  only  remedy  in  that  State  ;  having  been  modified  in  some  of  its  details  by  subsequent 
legislation.  Seel  Lomax,  Dig.  tit.  12,  per  tot.  In  the  States  of  Delaware,  North  Caro- 
lina, Kentucky,  and  Alabama,  the  creditor  may  have  an  elegit;  or  may  sue  out  a  fieri 
facias  for  the  absolute  sale  of  the  lands,  at  his  election. 

In  all  the  States,  the  legal  interest  in  lands,  and  in  some  of  them  the  equitable  title, 
of  every  debtor,  may  be  seized  and  sold  on  execution  for  his  debts.  The  manner  of 
proceeding  is  so  far  from  uniform,  that  the  mention  of  only  a  few  of  the  more  general 
modes  is  all  that  will  be  useful  to  the  student.  [In  some  of  the  States,  "homestead 
exemption  laws,"  so  called,  have  been  passed,  by  which  lands  of  the  debtor  of  a  certain 
quantity  or  value,  are  exempted  from  being  taken  on  execution.] 

These  methods  are  principally  three,  namely:  1st,  by  setting  off  the  land  itself  to 
the  creditor,  with  all  the  debtor's  title  thereto,  at  an  appraised  value  ;  2dly,  by  assigning 
to  him  the  rents  and  profits,  under  an  elegit ;  and,  3dly,  by  an  absolute  sale  of  the  lands, 
or  of  the  rents  and  profits,  by  the  sheriff-,  under  a  fieri  facias. 

In  the  New  England  States,  except  Rhode  Island,  the  first  of  these  modes  is  pursued, 
in  regard  to  the  freehold  estates  of  the  debtor.  The  execution  runs  against  all  the  legal 
property  of  the  debtor,. both  real  and  personal,  not  specifically  exempted  by  law;  to 
either  or  both  of  which  the  creditor  may  resort,  at  his  election ;  except,  that  in  Connec- 
ticut, the  land  is  liable  only  in  default  of  personal  estate,  to  be  shown  by  the  debtor 
upon  demand.     Booth  v.  Booth,  7  Conn.  350.    In  these  cases,  the  land  is  appraised  by 


540        Title  XIV.    Estate  by  Statute  Merchant,  Sfc.  s.  97. 

the  oaths  of  three  men,  appointed  by  the  parties  and  the  sheriff,  and  is  set  off  to  the 
creditor  to  hold  as  the  debtor  held  it,  in  satisfaction  of  the  execution,  with  the  fees  and 
costs  of  the  levy.  The  execution,  with  the  appraisement,  and  the  officer's  return 
thereon,  is  recorded  in  the  registry  of  deeds,  within  the  time  prescribed  by  law,  and  is 
returned  to  the  clerk's  office  whence  it  issued ;  thus  making  a  complete  title  to  the 
creditor. 

In  Maine  and  Massachusetts,  if  the  debtor  is  "  tenant  for  life,"  the  execution  may,  at 
the  creditor's  election,  be  levied  on  the  rents  and  income  only;  to  be  set  off  to  him  by 
appraisement,  for  such  term  of  time  as  will  satisfy  the  execution.  In  New  Hampshire, 
the  same  mode  may  be  adopted  in  all  cases  where  the  debtor  is  "  seised  of  a  rent,  or  of 
the  income  of  any  real  estate."  In  Vermont,  the  rents  and  income  of  all  "real  estate, 
leased  for  life  or  years,"  or  any  other  term  of  time  certain  or  uncertain,  may  be  taken 
and  assigned  to  the  creditor  for  a  period  sufficient  to  satisfy  the  execution  ;  to  be  ascer- 
tained by  the  sheriff,  if  the  rents  are  fixed  and  certain  ;  otherwise,  by  appraisement. 

In  Vermont,  no  seisin  is  delivered  to  the  creditor,  nor  can  he  enter  upon  the  land, 
until  the  end  of  six  months  after  the  execution  shall  have  been  extended.  In  Maine, 
Massachusetts,  New  Hampshire,  and  Connecticut,  the  officer  delivers  seisin  and  possession 
to  the  creditor  forthwith.  In  these  States,  the  debtor  may  redeem  the  land  by  payment 
of  the  appraised  value  and  interest,  in  one  year  from  the  levy.  In  Vermont,  the  time 
of  redemption  is  limited  to  six  months. 

See'  Maine,  Rev.  St.  1840,  ch.  94 ;  N.  Hamp.  Rev.  St.  1842,  eh.  195;  Mass.  Rev.  St. 
1836,  ch.  73 ;  Vt.  Rev.  St.  1839,  ch.  42;  Conn.  Rev.  St.  1838,  tit.  2,  ch.  2. 

In  all  the  States  not  already  mentioned,  the  lands  of  the  debtor  may  be  seized  and 
sold  on  execution ;  but  in  nearly  all  of  them  this  right  of  the  creditor  is  subject  to 
some  restrictions. 

Thus,  in  some,  the  land  cannot  be  taken,  but  in  default  of  personal  estate,  either  to 
be  shown  by  the  debtor,  or  to  be  found  by  the  officer  in  his  possession.  Such  is  the 
case  in  Rhode  Island,  New  York,  New  Jersey,  Pennsylvania,  Delaware,  North  Carolina, 
South  Carolina,  [see  Act  1849,  in  relation  to  the  lien  of  judgments,]  Kentucky,  Michigan, 
Indiana,  Mississippi,  Louisiana,  Alabama,  and  perhaps  others. 

In  some,  moreover,  the  land  is  liable  to  be  divided  into  lots  or  parcels,  by  the  debtor, 
at  his  option  ;  in  others,  this  is  made  the  imperative  duty  of  the  sheriff,  without  any 
election  of  the  debtor;  and  the  lots  or  parcels  are  then  sold,  in  the  order  designated  by 
the  debtor.  This  is  the  case  in  New  Jersey,  Georgia,  Tennessee,  Indiana,  Missouri,  and 
Arkansas. 

In  other  States,  the  land  is  first  to  be  appraised  by  the  oaths  of  persons  appointed 
either  by  the  parties  alone,  or  by  them  and  the  officer;  the  appraisal  being  probably 
designed  to  serve  as  a  basis  of  judgment  for  the  purchaser;  after  which  it  is  sold  to  the 
highest  bidder.  Such  is  the  course  in  Illinois ;  though,  in  this  State,  and  by  a  subse- 
quent statute,  which  seems  to  be  applicable  only  to  a  limited  class  of  cases,  the  land  is 
not  to  be  sold  under  two  thirds  the  appraised  value.  111.  Stat.  Feb.  27,  1841  ;  Brown- 
son  v.  Kinzie,  1  How.  S.  C.  Rep.  311  ;  4  Kent,  Comm.  434.  But  in  Ohio,  Indiana,  and 
Louisiana,  where  a  similar  appraisement  is  required,  the  land  cannot,  in  any  case,  be 
sold  by  the  sheriff  at  less  than  two  thirds  of  its  appraised  value.  In  Indiana,  if  this 
value  is  not  offered,  the  sheriff  returns  the  fact,  and  the  judgment  remains  a  lien  on  the 
land ;  the  creditor  being  at  liberty  to  sue  out  an  alias  execution,  and  repeat  the  trial  of 
a  sale,  at  his  pleasure.  In  Alabama,  there  is  a  similar  provision,  except  that  the  credi- 
tor cannot  sue  out  an  alias  writ  of  execution  and  sell  the  land,  until  the  end  of  twelve 
months  from  the  return  of  the  first  execution.  In  Louisiana,  if  no  sale  is  effected  at 
two  thirds  of  the  appraised  value,  the  sheriff  adjourns  the  sale  for  fifteen  days,  and  then 
sells  it  on  a  credit  of  twelve. months,  for  the  most  it  will  bring. 


Title  XIV.    Estate  by  Statute  Merchant,  8fc.  s.  97.       541 

In  Illinois,  the  mansion  or  place  of  residence  of  the  debtor,  and  his  personal  estate 
are  not  liable  to  be  taken,  until  his  other  property  is  exhausted.  In  Indiana,  the  officer 
is  not  to  levy  on  the  principal  messuage,  lands,  or  tenements  of  the  debtor,  or  the  place 
on  which  he  may  reside,  unless  other  sufficient  property  cannot  be  found  by  the  officer. 
Nor  can  lands  of  the  debtor  be  sold,  until  the  rents  and  profits  have  first  been  appraised, 
and  set  up  for  sale,  for  a  term  not  exceeding  seven  years,  to  satisfy  the  execution.  If 
they  do  not  produce  sufficient  for  this  purpose,  the  land  itself  may  be  sold. 

In  Pennsylvania,  before  any  levy  on  the  land,  the  sheriff  is  to  ascertain,  by  an  inqui- 
sition, whether  the  clear  income  and  profits  of  the  land  for  seven  years,  will  suffice  to 
discharge  the  execution;  and  if  so,  to  ascertain  the  clear  yearly  value;  of  which  he 
makes  return,  with  his  precept.  The  creditor  may  then  take  the  land,  under  a  liberari 
facias,  to  hold  until  the  profits,  thus  ascertained,  shall  discharge  the  debt ;  or  he  may 
elect  that  the  debtor  or  tenant  shill  hold  under  him,  at  the  same  rate  ;  and  if  they 
refuse  the  offer,  or  accept  it,  but  do  not  pay  the  rent,  the  land  may  be  sold. 

In  Delaware,  lands  yielding  no  profit  maybe  sold  on  a  levari  facias ;  and  if  the 
sheriff  returns  no  sale,  for  want  of  purchasers,  so  much  of  the  lands  as  will  satisfy  the 
judgment  may  be  set  off  to  the  creditor,  i«ider  a  liberari  facias,  at  a  value  ascertained 
by  appraisers.  Lands  yielding  rents  and  profits  sufficient  to  satisfy  the  judgment  in 
seven  years,  are  not  liable  to  be  sold ;  but  the  whole  of  such  lands  are  delivered  to  the 
creditor,  to  hold  until  he  is  satisfied,  by  a  reasonable  extent,  as  upon  writs  of  elegit  in 
England. 

In  Michigan,  the  lands  are  first  to  be  appraised  at  their  just  cash  value,  having  regard 
to  existing  liens,  and  to  the  nature  of  the  debtor's  interest  therein.  The  sheriff  then 
sets  off  sufficient,  at  two  thirds  of  the  appraised  value,  to  discharge  the  execution.  If 
the  creditor  accepts  this  in  ten  days,  the  sheriff  returns  the  execution  and  proceedings, 
and  makes  a  deed  to  the  creditor,  who  thus  obtains  the  debtor's  title  to  the  land.  But 
if  the  creditor  refuses  to  accept  the  land,  he  pays  the  cost,  and  the  levy  is  void. 

In  all  the  States,  where  land  is  sold  by  the  sheriff,  he  is  required  previously  to  adver- 
tise the  intended  sale,  and,  in  most  cases,  for  a  certain  period  of  timej  expressly  men- 
tioned, varying  from  ten  to  sixty  days;  and  some  statutes  require  that  the  sales  be 
made  at  the  county  court-house  ;  others,  that  they  be  made  only  in  the  county  town  ; 
some,  that  the  sales  be  in  term  time  :  others,  that  they  be  only  in  certain  months  of  the 
year;  or,  on  certain  days  of  the  month  ;  and  others  impose  other  conditions  ;  none  of 
which  fall  within  the  scope  of  these  notes. 

In  several  of  the  States,  where  land  is  sold  on  execution,  the  debtor  is  allowed  a 
certain  time  after  the  levy,  in  which  he  may  redeem  the  land  by  payment  of  the  money, 
and  a  specified  rate  of  interest.  In  Michigan,  New  York,  and  Illinois,  it  is  a  year ;  the 
interest  charged  being  ten  per  cent. ;  and,  in  the  two  last-mentioned  States,  any  other 
creditor  of  the  same  debtor  is  allowed  three  months  farther  to  redeem  the  land,  in  order 
to  let  in  his  own  debt  as  a  lien.  In  the  same  States,  and  in  Vermont,  the  purchaser  or 
creditor  has  no  deed  from  the  sheriff  or  right  of  entry  on  the  land,  until  the  time  of 
redemption  has  expired.  In  Pennsylvania,  the  purchaser  obtains  possession  by  a  war- 
rant from  the  Court,  issued  on  petition,  after  three  months  from  the  sale.  In  Delaware, 
he  may  sue  out  an  habere  facias  at  any  time.  In  the  other  States,  it  seems  to  be  the 
general  course  for  the  sheriff  to  execute  a  deed  or  act  of  sale  forthwith,  or  by  order  of 
Court,  to  the  purchaser,  which  gives  him  a  right  of  entry.  But  in  the  northern  States, 
where  the  land  is  set  off  to  the  creditor  by  appraisement,  the  sheriff  removes  the  debtor 
from  the  premises,  and  puts  the  creditor  in  actual  possession :  causing  the  debtor's 
tenant,  if  any,  to  attorn. 

In  the  New  England  States,  the  creditor  may  gain  a  lien  on  the  real  estate  of  the 
debtor  by  an  attachment  on  mesne  process ;  and  this  lieu  continues  until  a  certain 

vol.  i.  46 


542         Title  XIV.   Estate  by  Statute  Merchant,  fyc.  s.  97. 

period  after  the  rendition  of  judgment,  in  order  to  afford  sufficient  time  to  levy  the 
execution.  This  period,  in  Connecticut,  is  four  months ;  in  Vermont,  five  months;  in 
Rhode  Island,  it  is  until  the  return  day  of  the  first  execution,  which  is  to  issue'forthwith ; 
and  in  Maine,  New  Hampshire,  and  Massachusetts,  it  is  thirty  days.  In  New  York,  New 
Jersey,  Maryland,  Virginia,  North  Carolina,  Ohio,  Tennessee,  Georgia,  Mississippi,  Florida, 
and  Arkansas,  a  lien  is  created  either  by  the  rendition  or  the  docketing  of  judgment, 
but  it  may  generally  be  lost  by  the  omission  of  further  diligence  on  the  part  of  the 
creditor.  In  Illinois,  also,  there  is  a  lien  by  judgment,  which  continues  seven  years, 
provided  execution  is  sued  out  in  a  year.  In  Missouri,  a  similar  lien  continues  abso- 
lutely for  three  years ;  in  Pennsylvania,  five ;  and  in  Indiana,  ten.  In  New  York,  a 
docketed  judgment,  after  ten  years,  ceases  to  be  alien  against  bond  fide  purchasers,  and 
against  incumbrances  created  subsequent  to  the  judgment.  In  Kentucky,  the  lien  is 
created  only  by  delivery  of  the  execution  to  the  officer.  In  the  States  out  of  New 
England,  attachments  issue  only  in  certain  specified  cases. 

See  Maine  Rev.  St.  1840,  ch.  94  ;  Massachusetts,  Rev.  St.  1836.  ch.  73  ;  New  Hamp- 
shire Rev.  St.  1842,  ch.  195;  Vermont,  Rev.  St.  1839,  ch.  42 ;  Rhode  Island,  Rev.  St. 
1844,  p.  114 — 116;   Connecticut,  Rev.  St.  183t,  tit.  2,  ch.  2. 

New  York,  Rev.  St.  1845,  Part  3,  tit.  5,  ch.  6,  Vol.  II.  p.  454,  455,  465—467. 

New  Jersey,  Elmer's  Dig.  1838,  p.  486 — 488;  Reeves  v.  Johnson,  7  Halst.  29. 

Pennsylvania,  Dunlop's  Dig.  1846,  p.  160,  727—729,  733,  735—738,  822. 

Delaware,  Rev.  St.  1829,  p.  204,  205,  208,  212. 

Maryland,  Laws,  Vol.  I.  p.  616,  Stat.  1813,  ch.  102 ;  lb.  p.  641,  Stat.  1816,  ch.  129, 
Dorsey's  ed. ;  Ibid.  Vol.  II,  p.  1114,  ch.  92  ;  Hanson  v.  Barnes,  3  G.  &  J.  359  ;  Hind- 
man  v.  Ringgold,  1  H.  &  J.  473 ;  Miller  v.  Allison,  8  G.  &  J.  35  ;  McMechen  v.  Mar- 
man,  Ibid.  57 ;  Boring  v.  Lemon,  5  II.  &  J.  223  ;  Duval  v.  Waters,  1  Bland,  569  : 
Nesbitt  v.  Dallam,  7  G.  &  J.  494. 

Virginia,  Tate's  Dig.  1841,  p.  360—388;  1  Lomax,  Dig.  284—311.  U.  States  v. 
Morrison,  4  Pet.  124  ;  Burton  v.  Smith,  13  Pet.  464,  479. 

N.  Carolina,  Rev.  St.  1836,  Vol.  I.  ch.  45. 

S.  Carolina,  Statutes  at  Large,  Vol.  VII.  No.  1281,  §  87  ;  Vol.  VIII.  No.  1664,  §  2  ; 
Drayton  v.  Marshall,  Rice,  R.  374 ;  Blake  v.  Heyward,  1  Bailey,  R.  208.  [See  the 
act  of  1849,  "  to  amend  the  law  in  relation  to  judgments  ;  "  and  Walton  v.  Dickerson, 
4  Rich.  568.] 

Georgia,  Hotchkiss's  Dig.  1845,  ch.  22,  p.  602—607. 

Florida,  Thompson's  Dig.  1847,  p.  357,  358. 

Kentucky,  Morch.  &  Brown,  Dig.  1834,  Vol.  I.  p.  625,  631—635,  640. 

Tennessee,  Caruth.  &  Nich.  Dig.  1836,  p.  101—106,  292,  293,  419,  420. 

Michigan,  Rev.  St.  1837,  p.  323—325,  453,  507;  Stat.  1843,  No.  75. 

Ohio,  Rev.  St.  1841,  ch.  63;  Walker's  Introd.  p.  366,  367  ;  10  Ohio,  R.  74  ;  [Corwin 
v.  Benham,  2  Ohio,  N.  S.  36.] 

Indiana,  Rev.  St.  1843,  ch.  29  ;  lb.  ch.  40,  p.  389—414,  454,  455,  746—749. 

Illinois,  Rev.  St.  1839,  p.  389—392.  [See  Rev.  Laws,  1845,  p.  550;  Stone  v.  Wood, 
16  111.  177.] 

Missouri,  Rev.  St.  1845,  ch.  61,  90. 

Mississippi,  How.  &  Hut.  Dig.  1840,  ch.  48,  p.  621,  625—644 ;  [Moody  v.  Harper,  25 
Miss.  484.] 

Alabama,  Toulm.  Dig.  p.  289—303;  Stat.  Dec.  23,  1840,  (p.  58.) 

Louisiana,  Code  of  Practice,  Art.  646,  664,  665,  670,  671 — 682. 

Arkansas,  Rev.  St.  1837,  ch.  60;  lb.  ch.  23,  §  125;  ch.  116,  §  131.  See  also  4  Kent, 
Comm.  428—439. 

[Although  the  lien  upon  property  accrues  from  the  delivery  of  the  execution  to  the 


Title  XIV.    Estate  by  Statute  Merchant,  Sfc.  s.  97.      543 

sheriff,  when  the  process  issues  from  a  State  court,  or  to  the  marshal,  when  issuing 
from  a  federal  court,  and  the  rights  of  creditors  claiming  under  the  same  jurisdiction 
are  adjudged  accordingly,  yet  the  same  rule  does  not  hold  where  a  controversy  arises 
between  executions  issued  by  a  court  of  the  United  States  and  a  State  court.  In  such 
case,  whichever  officer,  whether  sheriff  or  marshal,  without  reference  to  the  time  when 
the  execution  was  put  into  their  hands,  acquires  possession  of  the  property  first  by  the 
levy  of  the  execution,  obtains  a  prior  right,  and  a  purchaser  at  a  judicial  sale  will  take 
the  property  free  from  all  liens  of  the  same  description.  Pulliam  v.  Osborne,  17  How. 
U.  S.  471,  and  cases  there  cited.] 


544 


TITLE  XV. 

MORTGAGE. 
BOOKS    OF   REFERENCE    UNDER    THIS    TITLE. 

J.  J.  Powell.  A  Treatise  on  the  Law  of  Mortgages,  with  Notes  by  T.  Coventry 
and  B.  Rand.     Boston,  1828. 

R.  H.  Coote.     Treatise  on  the  Law  of  Mortgage.     Philadelphia,  1837. 

John  Patch.     A  Practical  Treatise  on  the  Law  of  Mortgage.     London,  1821. 

G.  Spence,  on  the  Equitable  Jurisdiction  of  the  Court  of  Chancery.  Part  Ill- 
Book  I.  ch.  8. 

Samuel  Miller..     The  Law  of  Equitable  Mortgages,  &c.    Philadelphia,  1845. 

Story.     On  Equity  Jurisprudence.     Vol.  II.  ch.  27. 

Coke  upon  Littleton,  Lib.  3,  cap.  5,  fol.  201,  a. — 237,  a. 

Kent's  Commentaries.    Lect.  58. 

Blackstone's  Commentaries.    Book  II.  ch.  10. 

Flintoff.     On  the  Law  of  Real  Property.     Vol.  II.  Book  I.  ch.  6. 

Lomax's  Digest.    Vol.  I.  tit.  13. 

[Francis  Hilliard.    Law  of  Mortgages.     Second  Edition.    Boston,  1856.] 

CHAR  I. 

ORIGIN   AND   NATURE   OF   MORTGAGES. 

CHAP.  II. 

SEVERAL   INTERESTS   OF   THE   MORTGAGOR  AND   MORTGAGEE. 

.     CHAP.  III. 

EQUITY   OF  REDEMPTION. 

CHAP.  IV. 

PAYMENT   OF  THE   MORTGAGE  MONEY   AND   INTEREST. 

CHAP.  V. 

ORDER    IN    WniCn    MORTGAGES    ARE    TO    BE    PAID,   AND    MEANS    OF 
GAINING   A   PRIORITY. 

CHAP.  VI. 

FORECLOSURE. 


Title  XV.    Mortgage.     Ch.  I.  5.  1—4.  545 

CHAP.  I. 

ORIGIN  AND   NATURE   OF   MORTGAGES. 


Sect.     1.  Origin  of  Mortgages. 

7.  Interposition  of  the  Court  of 
Chancery. 
11.  Description  of  a  Mortgage. 
16.  Mortgages    in    Fee    or  for 
Years. 

19.  Welsh  Mortgages. 

20.  Equitable  Mortgages. 


Sect.  21.  All  Restraints  on  Redemption 
are  void. 

32.  Unless  there  is  an  Agreement 
to  purchase. 

38.  Cases  of  Conditional  Pur- 
chases. 

42.  A  Power  of  Sale  may  he 
given  to  a  Mortgagee. 


Section  1.  The  second  kind  of  estate  held  as  a  pledge  or  secu- 
rity for  the  repayment  of  money  borrowed  is,  where  lands  and 
tenements  are  conveyed  by  the  debtor  to  the  creditor  for  that  pur- 
pose. In  the  reign  of  King  Henry  II.,  two  modes  of 
pledging  lands  *  were  in  use,  which  are  fully  described  *  65 
by  Glanville,  and  appear  to  have  been  adopted  from  the 
customary  law  of  Normandy. 

2.  The  first  of  these  was  called  Vivum  Vadium ;  and  was  a 
conveyance  of  lands  by  a  debtor  to  his  creditor,  to  hold  until 
the  rents  and  profits  should  amount  to  the  sum  borrowed;  in 
wThich  case  the  pledge  was  said  to  be  living ;  for,  on  discharge 
of  the  debt,  it  returned  to  the  borrower. 

3.  The  second  mode  of  pledging  land  was  called  Mortuum 
Vadium;  and  is  thus  described: — "  If  a  feoffment  be  made  upon 
such  condition,  that  if  the  feoffor  pay  to  the  feoffee  X40  of 
money,  that  then  the  feoffor  may  reenter,  &c.  In  this  case,  the 
feoffee  is  called  tenant  in  mortgage,  which  is  as  much  as  to  say 
in  French,  as  Mort  Gage,  and  in  Latin,  Mortuum  Vadium. 
And  it  seemeth  that  the  cause  why  it  is  called  mortgage  is,  for 
that  it  is  doubtful  whether  the  feoffor  will  pay,  at  the  day  lim- 
ited, such  sum  or  not ;  and  if  he  doth  not  pay,  then  the  land 
which  is  put  in  pledge,  upon  condition  for  the  payment  of  the 
money,  is  taken  from  him  forever,  and  so  dead  to  him  upon  a 
condition."  (a) 

4.  It  appears  from  this  passage  that  a  mortgage  was  created 
by  a  conveyance  of  the  lands  from  the  debtor  to  the  creditor, 
with  a  condition,  that  if  the  money  was  paid  on  a  certain  day, 

(«)  Litt.  §  332. 

46* 


546  Title  XV.     Mortgage.    Ch.  I.  s.  4—8. 

the  conveyance  should  be  void  ;  and  the  debtor  might  enter,  and 
have  his  former  estate.  But,  if  default  was  made  in  payment  of 
the  money  on  the  day  appointed,  then  the  lands  became  abso- 
lutely vested  in  the  creditor,  freed  from  the  condition.  And  all 
the  maxims  of  the  common  law  respecting  the  breach  of  a  condi- 
tion were  strictly  applied  to  this  kind  of  conveyance,  (a) 

5.  This  mode  of  pledging  lands  was  attended  with  great 
inconveniences.  If  the  money  was  not  paid  on  the  very  day 
named  in  the  deed,  the  lands  were  absolutely  forfeited;  nor 
would  any  subsequent  tender  of  the  money  avail  the  debtor, 
although  the  estate  mortgaged  were  of  much  greater  value  than 
the  sum  borrowed. 

6.  Notwithstanding  the  obvious  injustice  of  this  doctrine,  the 
courts  of  common  law  would  not  allow  of  the  smallest  degree  of 
liberality  in  the  construction  of  these  kind  of  conditions.  For  in 
the  only  two  cases  reported  by  Lord  Coke  respecting  mortgages, 

the  Judges  appear  to  have  held  that  an  estate  mortgaged 
66  *       was  absolutely  *  forfeited  and  lost,  if  the  condition  was 
not  really  and  bond  fide  performed,  (b) 

7.  The  doctrine  adopted  by  the  courts  of  common  law  respect- 
ing mortgages  being  totally  contrary  to  the  spirit  of  this  species 
of  contract,  and  to  the  principles  of  justice,  subjecting  those  who 
borrowed  money  on  the  security  of  their  lands  to  the  total  loss 
of  them,  by  the  non-performance  of  the  condition ;  the  Court  of 
Chancery  was  induced  to  interpose,  and  by  an  equitable  and 
liberal  construction  to  mitigate  the  rigor  of  the  common  law. 

8.  It  was  obvious  that  lands  mortgaged  were  only  meant  to 
become  a  security  for  the  payment  of  what  was  borrowed  ;  as  it 
never  could  be  the  intention  of  a  person  who  mortgaged  his 
lands,  that  a  large  estate  should  become  the  absolute  property  of 
a  creditor,  if  a  sum  of  money,  much  inferior  to  the  value  of  such 
estate,  was  not  paid  on  the  day  appointed.  The  Court  of  Chan- 
cery, therefore,  resolved,  that  a  condition  of  this  kind  was  in  the 
nature  of  a  penalty,  against  which  equity  ought  to  relieve ;  that 
all  the  creditor  could  in  justice  and  conscience  be  entitled  to,  was 
his  principal,  interest,  and  costs ;  and  established  it  as  a  ruling 
maxim,  that  although  the  condition  was  not  strictly  performed, 

(a)  Madox  Form.  No.  560.    Kyghly's  case,  Dyer,  369,  a.    Tit.  13,  c.  2. 

(b)  Goodall's  case,  5  Rep.  95.     Wade's  case,  Id.  114. 


Title  XV.     Mortgage.    Ch.  I.  s.  8—10.  547 

by  which  the  estate  was  forfeited  at  law,  yet,  if  the  debtor  paid 
the  money  borrowed,  and  interest,  within  a  reasonable  time,  he 
should  be  entitled  to  call  on  the  creditor  for  a  reconveyance  of  his 
lands. 

9.  This  right  acquired  the  name  of  an  equity  of  redemption ; 
but  it  is  not  ascertained  when  it  was  first  allowed.  Lord  Hale  is 
reported  to  have  said,  that  in  14  Rich.  II.,  the  Parliament  refused 
to  admit  of  an  equity  of  redemption.  This  appears  to  be  a  mis- 
take ;  for,  in  the  case  alluded  to  by  Lord  Hale,  and  of  which  he 
has  stated  a  part  in  his  history  of  the  Common  Law,  ch.  3,  the 
mortgagor  asserted  that  he  had  paid  the  money,  and  prayed  to 
have  his  lands  again.  Nor  did  the  idea  of  an  equity  of  redemp- 
tion exist  for  some  centuries  after ;  for,  although  Tothill  has 
mentioned  a  case  in  37  Eliz.,  where  a  mortgagor  had  a  decree  in 
Chancery  for  a  reconveyance  of  lands  mortgaged,  yet  no  mention 
is  made  by  Lord  Coke  of  an  equity  of  redemption  ;  from  which 
it  may  be  presumed  that  it  was  not  then  generally  known.  It 
is,  however,  probable,  that  this  doctrine  was  introduced  in  the 
reign  of  James  L,  when  the  Court  of  Chancery  had  estab- 
lished *its  equitable  jurisdiction.  And  in  the  first  year  of  *  67 
Charles  I.,  there  is  a  case  in  which  this  right  is  supported 

as  a  thing  of  course,  (a) 

10.  After  the  allowance  of  an  equity  of  redemption,  there  still 
remained  some  legal  scruples,  which  subjected  the  mortgagor  to 
great  inconveniences.  It  was  conceived  that  where  the  condi- 
tion was  not  strictly  performed  by  the  payment  of  the  money  on 
the  day  mentioned  in  the  conveyance,  the  lands  became  liable  to 
all  the  legal  charges  of  the  mortgagee  ;  to  the  dower  of  his  wife, 
to  forfeiture,  and  escheat ;  and  that  the  mortgagor  could  have  no 
relief  against  those  who  came  in,  in  the  post.  But  the  Court  of 
Chancery,  as  it  increased  in  power,  has  set  this  matter  right ; 
and  has  established  a  redemption,  not  only  against  the  tenant  in 
dower,  and  all  those  who  claim  under  the  mortgagee ;  but  also 
against  the  lord  by  escheat,  and  all  others  who  come  in,  in  the 
post ;  because  in  equity  the  payment  of  the  money  puts  the 
mortgagor  in  statu  quo  ;  since  the  lands  were  originally  conveyed 
as  a  security  only  for  the  money  borrowed,  (b) 

(o)  1  Cha.  Ca.  219.    Rot.  Pari,  vol,  3,  p.  258.    Emanuel  Coll.  v.  Evans,  1  Cha.  Rep.  10, 
(6)  Nash  v.  Preston,  Cro.  Car.  190.    Treat,  of  Eq.  B.  3,  c.  1,  $  2. 


548  Title  XV.     Mortgage.     Ch.  I.  s.  11. 

11.  A  mortgage  may  therefore  be  described  to  be  a  conveyance 
of  lands  by  a  debtor  to  his  creditor,  as  a  pledge  or  security  for 
the  repayment  of  a  sum  of  money  borrowed ;  *  with  a  proviso 

1  Wherever  it  appears  that  there  is  a  debt  clue,  and  that  the  conveyance  was  made  for 
the  purpose  of  securing  the  payment  of  that  debt,  it  is  in  equity  a  mortgage.  Parks  v. 
Hall,  2  Pick.  211,  per  Wilde,  J.;  Briggs  v.  Fish,  2  Chipm.  100;  Conard  v.  Atlantic 
Ins.  Co.  1  Pet.  386  ;  Flagg  v.  Mann,  14  Pick.  478 ;  2  Story,  Eq.  Jur.  §  1018  ;  Wilcox 
v.  Morris,  1  Murph.  117.  Thus,  a  covenant  to  reconvey  on  payment  of  a  sum  of 
money,  made  contemporaneous  with  the  deed,  constitutes  a  mortgage.  Peterson  v. 
Clark,  15  Johns.  205;  Blaney  v.  Bearce,  2  Greenl.  132;  Colwell  v.  Woods,  3  Watts, 
188.  And  this,  though  there  be  no  separate  obligation  for  the  payment  of  the  money. 
Kice  v.  Rice,  4  Pick.  309 ;  Wharf  v.  Howell,  5  Binn.  499 ;  Dougherty  v.  McColgan, 
6  G.  &  J.  275.  But  this  fact  of  the  want  of  mutuality,  though  not  conclusive,  is  to  be 
taken  into  consideration  in  determining  whether  it  was  intended  as  a  mortgage,  or  a 
sale  with  the  right  of  preemption.  Flint  v.  Sheldon,  13  Mass.  448 ;  Bodwell  v.  Web- 
ster, 13  Pick.  415;  Flagg  v.  Mann,  14  Pick.  478 ;  Conway  v.  Alexander,  7  Cranch, 
237  ;  Goodman  v.  Grierson,  2  Ball  &  Beatty,  279.  If  the  deed  be  made  to  be  absolute 
on  the  payment  of  certain  notes,  but  in  default  thereof  to  be  void,  it  is  a  mortgage. 
Lincoln  and  Ken.  Bank  v.  Drummond,  5  Mass.  321  ;  Carr  v.  Holbrook,  1  Mis.  240. 
So,  if  it  be  for  the  performance  of  any  other  duty,  such  as  the  maintenance  of  the 
grantor  during  life.     Lanfair  v.  Lanfair,  18  Pick.  299. 

[A  deed  of  land,  with  a  stipulation  therein,  that  the  title  shall  not  vest  in  the  grantee 
until  the  purchase-money  is  paid,  is  treated  in  equity  as  a  mortgage.  Pugh  v.  Holt, 
27  Miss.  (5  Cushm.)  461  ;  Austin  v.  Downer,  25  Vt.  (2  Deane,)  558.] 

If  the  language  of  the  deed  is  plainly  that  of  an  intent  to  make  a  mortgage,  it  is 
decisive ;  and  if  the  parties  had  a  different  intent,  the  mistake  is  relievable  only  in 
equity,  upon  a  bill  specially  for  that  purpose.  But  if  the  deed  is  absolute  in  its  terms, 
or  the  meaning  is  not  clear  upon  its  face,  parol  evidence  of  the  circumstances  is  admis- 
sible, to  show  that-a  mortgage  was  intended.  Colwell  v.  Woods,  3  Watts,  188; 
Wheeland  v.  Swartz,  1  Yeates,  579  ;  Catlin  v.  Chittenden,  Brayt.  163;  Lane  v.  Shears, 
1  Wend.  433  ;  Walton  v.  Cronly,  14  Wend.  63 ;  Kunckle  v.  Wolfersberger,  6  Watts, 
126;  Williams  v.  Owen,  5  Jur.  114;  10  Sim.  386.  [Miller  v.  Thomas,  14  111.  428. 
See  Woodworth  v.  Guzman,  1  Cal.  203.] 

The  following  cases  afford  examples,  illustrating  the  nature  of  a  mortgage,  as  above 
stated.  Carey  v.  Rawson,  8  Mass.  159 ;  Stoever  v.  Stoever,  9  S.  &  R.  434  ;  Wharf  v. 
Howell,  5  Binn.  499  ;  Hillhouse  v.  Dunning,  7  Conn.  143  ;  French  v.  Sturdivant, 
8  Greenl.  246 ;  Brown  v.  Dean,  3  Wend.  208 ;  Stewart  v.  Hutchins,  13  Wend.  485  ; 
Erskine  v.  Townsend,  2  Mass.  493 ;  Taylor  v.  Weld,  5  Mass.  109  ;  Eaton  v.  Whiting, 
3  Pick.  484. 

In  New  Hampshire,  it  is  not  sufficient,  in  order  to  constitute  a  mortgage,  that  the 
deed  be  intended  as  security  for  the  payment  of  a  debt  or  duty  ;  it  must  be  a  deed  on 
condition  therein  expressed.  N.  Hamp.  Rev.  St.  ch.  131,  §  2  ;  Bickford  v.  Daniels,  2  N. 
Hamp.  71  ;  Moore  v.  Esty,  5  N.  Hamp.  469.  In  Louisiana,  the  exact  sum  must  be  ex- 
pressed in  the  act  of  mortgage.     Civil  Code  Louis,  art.  3277. 

Although  Courts  having  general  Equity  jurisdiction  may  grant  relief  in  all  cases  of 
forfeiture  ;  yet  in  some  States,  their  jurisdiction  in  Equity  is  strictly  limited,  and  mort- 
gages are  governed  exclusively  by  statute  provisions,  by  which  Courts  are  authorized, 
in  suits  for  foreclosure,  to  ascertain  the  sum  or  amount  actually  due  to  the  creditor, 
upon  payment  of  which,  within  a  time  limited  by  law  or  expressed  in  the  decree,  the 


Title  XV.     Mortgage.     Ch.  I.  s.  11—12.  549 

that  such  conveyance  shall  be  void  on  payment  of  the  money 
borrowed,  with  interest,  on  a  certain  day ; '  and  in  all  mortgages, 
although  the  money  be  not  paid  at  the  time  appointed,  by  which 
the  conveyance  of  the  lands  becomes  absolute  at  law,  yet  the 
mortgagor  has  still  an  equity  of  redemption ;  that  is,  a  right  in 
equity,  on  payment  of  the  principal,  interest,  and  costs  within  a 
reasonable  time,  to  call  for  a  reconveyance  of  his  lands. 

12.  It  was  formerly  a  practice  to  make  a  mortgage  by  an  ab- 
solute conveyance  ;  with  a  defeasance  or  clause  of  redemption  in 
a  separate  deed?     Lord  Talbot  has  said  that  this  was  a  wrong 

lien  is  discharged.  In  these  eases  it  lias  heen  questioned,  whether  any  deed  can  be 
regarded  strictlv  as  a  mortgage,  unless  the  condition  is  for  the  payment  of  money,  or 
the  performance  of  a  contract  where  the  damages  arc  capable  of  computation  by  the 
Court ;  and  whether,  therefore,  conditions  for  general  support,  comfort  and  mainten- 
ance, good  behavjor,  and  the  like,  are  susceptible  of  relief,  unless  under  a  general 
equitable  jurisdiction.  In  Lanfair  v.  Lanfair,  supra,  a  condition  for  maintenance  was 
held  to  constitute  a  mortgage  ;  but  the  distinction  above  alluded  to  does  not  appear  to 
have  been  taken.  So,  in  Xoyes  v.  Sturdivant,  6  Shepl.  104.  In  such  cases,  however, 
the  damage  for  breach  of  the  covenant  for  maintenance  is  susceptible  of  computation, 
by  the  value  of  board  by  the  week.  And  see  Colman  v.  Packard,  16  Mass.  39.  In 
Massachusetts,  this  question  has  been  subsequently  settled  in  the  affirmative,  by  Rev.  St. 
ch.  107,  §  6,  23.  So,  in  Maine,  Rev.  St.  1840,  ch.  125,  §  15.  And  in  New  Hampshire, 
Rev.  St.  -1842,  ch.  131,  §  1.     And  see  Holmes  v.  Fisher,  13  N.  Hamp.  R.  9. 

In  England,  a  debt,  in  the  popular  sense  of  the  term,  seems  to  be  considered  as  of 
the  essence  of  a  mortgage.     See  2  Alk.  435  ;  Williams  v.  Owen,  5  My.  &  Cr.  303. 

[A  mortgage  purporting  to  secure  a  bond,  is  not  good  without  the  bond,  unless  it 
appear  that  the  mortgagee  is  entitled  to  the  possession  of  the  bond.  And  the  assignee 
of  such  mortgagee  stands  in  no  better  position.  Garroch  v.  Sherman,  2  Halst.  Ch.  R. 
219-1 

1  It  is  not  essential  to  a  mortgage  that  a  day  be  named  for  the  payment ;  since,  if  none 
is  named,  the  law  implies  that  the  money  is  payable  forthwith.  See  Parks  v.  Hall, 
2  Pick.  211. 

2  To  constitute  a  defeasance,  the  two  deeds  must  be  delivered  contemporaneously;  but 
it  is  not  necessary  that  they  bear  the  same  date.  Harrison  v.  Phillips  Academy,  12 
Mass.  45G  ;  Xewhall  v.  Burt,  7  Pick.  157  ;  Scott  v.  McFarland,  13  Mass.  309  ;  Hale  v. 
Jewell,  7  Greenl.  435.  This  is  all  that  was  intended  by  the  Court  in  Bennock  v. 
Whipple,  3  Fairf.  346  ;  though  it  is  there  gratuitously  said  that  the  dates  must  be  the 
same.  See  further,  tit.  32,  ch.  7.  [South  Baptist  Society  of  Albany  v.  Clapp,  18 
Barb.  Sup.  Ct.  36 ;  Bryan  v.  Cowart,  21  Ala.  92.]  A  contemporaneous  covenant  or 
bond,  for  a  reconveyance  of  the  land  upon  payment  of  a  certain  sum  of  money,  is  a 
sufficient  defeasance  to  constitute  a  mortgage.  Peterson  v.  Clark,  15  Johns.  205; 
Erskine  v.  Townsend,  2  Mass.  493  ;  Wharf  v.  Howell,  5  Binn.  499  ;  Rice  v.  Rice,  4 
Pick.  349.  But  it  does  not  always  and  of  itself  constitute  the  transaction  a  mortgage, 
unless  the  contract  is  a  security  for  the  repayment  of  money.  Hicks  v.  Hicks,  5  G.  & 
J.  75.  [A  deed  absolute  on  its  face,  had  written  on  its  back  a  condition,  of  even  date 
with  the  deed,  but  not  signed,  that  if  the  grantor  paid  a  certain  note  therein  described, 
the  deed  should  become  void  ;  held,  that  the  whole  together  constituted  a  mortgage. 


550  Title  XV.     Mortgage.     Ch.  I.  5.  12—14. 

way,  and  to  him  always  appeared  with  a  face  of  fraud ;  for  the 
defeasance  might  be  lost,  and  then  an  absolute  conveyance  set 
up  :  he  would  discourage  the  practice  as  much  as  possible.  And 
Lord  Hardwicke  has  said,  that  wherever  the  Court  finds  a  clause 
of  redemption  in  a  separate  deed,  it  adheres  to  it  strictly  to  pre- 
vent the  equity  of  redemption  from  being  entangled,  to  the  prej- 
udice of  the  mortgagor,  (a) 

13.  The  Court  of  Chancery,  having  thus  extended  its 
68  *  protection  *  to  the  mortgagor,  by  allowing  him  to  redeem 
his  estate  after  it  was  forfeited  at  law,  it  also  gave  the 
mortgagee  a  right,  in  a  reasonable  time  after  forfeiture,  to  call  on 
the  mortgagor  for  payment  of  his  money,  or  else  to  be  forever 
foreclosed  or  excluded  from  any  further  equity  of  redemption. 

14.  As  money  borrowed  on  mortgage  is  seldom  paid  on  the 
day  appointed,  mortgages  are  now  become  entirely  subject  to 
the  Court  of  Chancery,  where  it  is  an  established  rule  that  the 
mortgagee  holds  the  estate  merely  as  a  pledge  or  security  for  the 
repayment  of  his  money ;  therefore  a  mortgage  is  considered  in 
equity  as  personal  estate.  The  mortgagor  is  held  to  be  the  real 
owner  of  the  land,  the  debt  being  esteemed  the  principal,  and 
the  land  the  accessory.1  Whenever  the  debt  is  discharged,  the 
interest  of  the  mortgagee  in  the  land  determines  of  course ;  and 
he  is  looked  on  in  equity  as  a  trustee  only  for  the  mortgagor.2 

(«)  Forrest,  Rep.  63.    Baker  v.  Wind,  1  Ves.  160. 

Whitney  v.  French,  25  Vt.  (2  Deane,)  663.  If  a  deed  be  absolute  in  the  first  instance, 
and  a  defeasance  be  executed  subsequently,  it  will  relate  back  to  the  date  of  the  princi- 
pal deed,  and  connect  itself  with  it,  so  as  to  render  it  a  security  in  the  nature  of  a 
mortgage.  Scott  v.  Henry,  8  Eng.  (13  Ark.)  112.  To  make  the  bond  operate  as  a 
defeasance  as  against  subsequent  purchasers,  it  must  be  recorded,  or  actual  notice  to 
them  of  its  existence  be  shown.     Purrington  v.  Pierce,  38  Maine,  (3  Heath,)  447.] 

In  New  Jersey,  Delaivare,  and  Illinois,  if  the  deed  is  absolute  on  its  face,  any  other 
ivriting,  whether  under  seal  or  not,  is  sufficient  to  constitute  the  transaction  a  mort- 
gage. But  to  be  available  as  a  defeasance,  the  instrument  must  be  recorded  in  the 
registry  of  deeds  where  the  mortgage  deed  is  to  be  recorded.  In  the  two  former 
States,  it  is  made  the  duty  of  the  mortgagee  to  cause  an  abstract  of  the  writing  to 
be  registered,  with  the  mortgage  deed.  In  Illinois,  the  instrument  must  be  regis- 
tered by  the  mortgagor,  within  thirty  days  after  the  absolute  deed  is  recorded.  El- 
mer's Dig.  LL.  N.  Jers.  p.  86;  Delaware,  Rev.  St.  1829,  p.  91 ;  Illinois,  Rev.  St.  1839, 
p.  150.     [Kintner  v.  Blair,  4  Halst.  Ch.  R.  (N.  J.)  485.] 

1  This  view  of  the  nature  of  a  mortgage,  is  familiar  in  the  United  States  ;  the  debt 
being  everywhere  treated  as  the  principal,  and  the  mortgage  as  only  the  incident ; 
though,  at  common  law,  the  legal  title,  as  between  the  parties,  is  in  the  mortgagee. 

2  See  post,  ch.  2,  §  41,  42,  note. 


Title  XV.     Mortgage.     Ch.  I.  s.  15.  551 

15.  In  all  modern  mortgages  there  is  a  covenant  inserted  from 
the  mortgagor,  for  himself,  his  heirs,  executors,  and  administra- 
tors, to  repay  the  money  borrowed,  with  interest ;  which  creates 
a  personal  contract  between  the  mortgagor  and  the  mortgagee, 
for  the  payment  of  the  money.1 

1  In  some  of  the  United  States,  and  probably  in  nearly  all  of  them,  the  general  prac- 
tice is  not  to  insert  in  the  deed  a  covenant  for  repayment  of  the  money,  but  to  take  a 
separate  obligation,  either  by  bond  or  promissory  note.  The  deed  only  contains  a  pro- 
viso, that  if  the  money  be  paid  at  such  a  day,  then  the  deed,  as  also  the  obligation, 
describing  it,  shall  both  be  void.  Sometimes,  however,  no  separate  security  is  taken, 
and  of  course  none  is  mentioned  in  the  deed ;  but  the  proviso  is  merely  that  if  such  a 
sum  is  paid  by  such  a  day,  the  deed  shall  be  void.  In  such  case  it  becomes  a  question 
whether  the  mortgagee  can  have  an  action  at  law  for  the  money,  or  whether  his  sole 
remedy  is  against  the  land. 

It  is  clear  that  the  absence  of  any  bond  or  other  express  obligation  to  pay  the  money, 
will  not  make  the  instrument  less  effectual  as  a  mortgage,  if  the  mortgagor  had  the 
money.  4  Kent,  Comm.  145  ;  Floyer  v.  Lavington,  I  P.  Wms.  268 ;  Cope  v.  Cope, 
2  Salk.  449;  Ancaster  v.  Mayer,  1  Bro.  Ch.  Ca.  464;  Smith  v.  People's  Bank,  11 
Shepl.  185. 

But  the  material  questions  are,  whether  such  a  deed  is  conclusive  evidence  of  indebt- 
ment ; — and  whether  it  is  evidence  of  any  personal  liability  at  all,  or  only  of  a  lien  on 
the  land. 

The  case  usually  cited  as  authority  for  the  conclusive  character  of  the  evidence,  is 
that  of  King  v.  King,  3  P.  Wms.  358,  per  Lord  Talbot,  C.  But  in  that  case  there  was 
also  a  bond  for  repayment  of  the  money  ;  and  the  saying  that  "  every  mortgage  implies 
a  loan,"  was  extrajudicial.  The  question  was,  whether  the  debt  should  be  paid  out  of 
the  personalty,  in  relief  of  the  devisee  of  the  mortgaged  premises. 

The  general  question,  whether  the  proviso,  that  the  deed  should  be  void  on  the  pay- 
ment of  a  sum  of  money,  imported  a  covenant  to  pay,  was  settled  in  the  negative,  in 
Briscoe  v.  King,  Cro.  Jac.  281  ;  Trin.  9  Jac.  I.,  Yelv.  206,  S.  C.  And  see  accordingly, 
Suffield  v.  Baskerville,  2  Mod.  36  ;  Pasch.  27  Car.  2  ;  4  Kent,  Comm.  145  ;  Tooms  v. 
Chandler,  3  Keb.  454,  460.  (In  the  report  of  this  case,  in  2  Lev.  116,  it  is  said  that 
judgment  was  for  the  plaintiff ;  but  as  the  reporter  speaks  of  two  hearings,  at  the  first  of 
which  Twysden  was  opposed  to  Hale  in  opinion,  and  as  he  refers  to  Cro.  Jac.  281,  and 
Yelv.  206,  for  a  "  like "  judgment,  it  is  plain  that  his  report  of  the  judgment  is 
wrong,  and  that  it  was  for  the  defendant.)  See  also  Howell  v.  Price,  2  Vern. 
701 ;  1  P.  Wms.  291 ;  Prec.  Chan.  423,  477,  S.  C. ;  where  the  Chancellor  was  at 
first  clear  that  there  was  no  debt;  and  changed  his  opinion  only  upon  the  particular 
language  of  the  will  and  other  evidence  in  the  case.  4  Vin.  Abr.  456,  pi.  9,  note.  On 
the  above  authorities  it  is  laid  down,  in  Piatt  on  Cov.  37,  that  no  action  lies  on  a  pro- 
viso, without  an  express  covenant,  or  other  evidence  in  the  deed,  of  an  agreement  to  pay. 
Salisbury  v.  Philips,  10  Johns.  57,  ace.  So  it  was  also  expressly  held  in  Drummond 
v.  Richards,  2  Munf.  337.  And  see  South  Sea  Co.  v.  Duncombe,  2  Barnard,  50,  where 
stock  was  pledged  for  a  contemporary  loan  ;  which  probably  is  the  case  alluded  to  by 
the  Lord  Chancellor  in  King  v.  King,  3  P.  Wms.  360 :  Scott  v.  Fields,  7  Watts,  360  ; 
Hunt  v.  Lewin,  4  Stew.  &  Port.  150  ;  Elder  v.  Rouse,  15  Wend.  218. 

The  general  position,  that  the  mortgagee  is  a  simple  contract  creditor,  where  there  is 
no  express  covenant  to  pay,  which  is  stated  in  King  v.  King,  supra,  was  repeated  by  Lord 


552  Title  XV.     Mortgage.     Ch.  I.  s.  16—17. 

16.  Mortgages  are  of  two  sorts;  either  the  lands  are  conveyed 
to  the  mortgagee  and  his  heirs  in  fee  simple,  with  a  proviso,  that 
if  the  mortgagor  pays  the  money  borrowed  on  a  certain  day,  the 
mortgagee  will  reconvey  the  lands ;  or  else  the  lands  are  conveyed 
to  the  mortgagee,  his  executors,  administrators,  and  assigns,  for  a 
long  term  of  years;  with  a  proviso,  that  if  the  money  borrowed 
is  repaid  on  a  certain  day,  the  term  shall  cease,  and  become  void. 

17.  In  the  case  of  mortgages  for  terms  of  years,  if  the  money 
is  not  paid  on  the  day  appointed,  the  estate  becomes  absolutely 
vested,  at  law,  in  the  mortgagee,  for  the  residue  of  the  term. 
And  although  a  court  of  equity  allows  the  mortgagor  to  redeem 


Thurlow  in  Ancaster  v.  Mayer,  2  Bro.  Ch.  Ca.  464,  and  is  found  in  Cope  v.  Cope,  2 
Salk.  449,  and  elsewhere.  But  in  those  cases  it  was  not  decided  that  a  deed,  with  a 
proviso  of  defeasance  on  the  payment  of  a  sum  of  money,  was  evidence,  per  se,  of  a 
debt  of  that  amount,  to  be  enforced  in  a  court  of  law.  The  question  pending  was 
whether,  if  the  debt  were  clearly  proved  or  admitted,  as  in  those  cases  it  was,  the  per- 
sonal estate,  having  been  augmented  by  the  loan,  should  first  contribute  to  its  repay- 
ment. It  was  purely  a  case  of  marshalling  of  assets  and  liabilities  in  equity,  and  not 
a  question  of  liability  at  law. 

In  another  class  of  cases  it  has  been  held,  that  if  there  be  evidence  of  a  debt,  inde- 
pendent of  the  deed,  and  the  deed  merely  ascertains  or  recognizes  the  amount  of  the 
debt,  but  contains  no  covenant  to  pay,  the  existence  of  the  deed  will  not  bar  an  action 
of  assumpsit  or  other  proper  remedy  for  the  money.  Tilson  v.  The  Warwick  Gas  Light 
Co.  4  B.  &  C.  968 ;  Yates  v.  Aston,  4  Ad.  &  El.  182,  N.  S. ;  Burnett  v.  Lynch,  5  B.  & 
C.  589;  Elder  v.  House,  15  Wend.  218.  But  this  is  a  question  totally  different  from 
the  one  under  consideration. 

On  the  whole,  it  may  be  collected  from  the  authorities,  that  the  deed,  in  these  cases, 
is  merely  evidence  of  a  lien  on  the  land,  or  of  a  conditional  sale,  unless  it  contains  an 
admission  of  a  debt  due  ;  though  the  admission  need  not  be  in  direct  terms  ;  and  that 
if  the  debt  is  either  admitted  in  the  deed,  or  can  be  proved  aliunde,  it  may  be  sued  for 
and  recovered  as  though  no  mortgage  had  been  given ;  unless,  from  the  evidence,  it  ap- 
pears to  have  been  the  agreement  of  the  parties  that  the  land  alone  should  be  resorted 
to.  Where  it  is  the  usage  to  give  a  separate  obligation  for  the  debt,  the  omission  to 
give  it  would  be  cogent  evidence  of  a  mutual  intent  that  the  land  should  afford  the  only 
remedy.  In  Salisbury  v.  Philips,  10  Johns.  57,  such  agreement  was  inferred  from  the 
power  to  sell,  contained  in  the  deed.  See  Conway  v.  Alexander,  7  Cranch,  237  ;  Hills 
v.  Elliot,  12  Mass.  33  ;  1  Powell  on  Mortg.  61,  n. ;  2  Powell  on  Mortg.  774,  n.  866,  n. 
(Rand's  ed. ;)  Wharf  v.  Howell,  5  Binn.  499  ;  4  Kent,  Comm.  145. 

In  New  York,  it  is  expressly  enacted,  that  if  the  deed  contains  no  express  covenant 
for  payment  of  the  money,  and  there  be  no  separate  agreement  for  that  purpose,  the 
mortgagee's  remedy  shall  be  confined  to  the  land.  N.  York,  Rev.  Stat.  Vol.  II.  p.  22, 
§139,  3d  ed.;  [Weed  v.  Covill,  14  Barb.  Sup.  Ct.  242.]  So  in  Indiana.  Rev.  St. 
1843,  ch.  29,  §  31. 

[  A  mortgagee,  having  the  legal  title,  is  not  ousted  by  his  note,  to  secure  which  the 
mortgage  was  given,  being  barred  by  the  Statute.  Ohio  Co.  v.  Winn,  4  Md.  Ch. 
Decis.  253  ;  Richmond  v.  Aiken,  25  Vt.  (2  Deane,)  324.] 


Title  XV.     Mortgage.     Ch.  I.  s.  17—20.  553 

within  a  reasonable  time,  by  paying  the  principal,  interest,  and 
costs,  yet  such  payment  only  gives  the  mortgagor  an  equitable 
right  to  the  term. 

18.  Mortgages /or  pears  are  attended  with  this  advantage,  that 
on  the  death  of  the  mortgagee,  the  term  and  the  right  to  receive 
the  mortgage  debt  vest  in  the  same  person ;  whereas,  in  the  case 
of  a  mortgage  in  fee,  the  estate,  on  the  death  of  the  mortgagee, 
goes  to  his  heir  or  devisee ;  and  the  money  is  payable 

*  to  his  executor  or  administrator.  This  produces  a  separ-  *  69 
ation  of  rights,  that  is  often  attended  with  great  incon- 
veniences, both  to  the  mortgagor  and  representatives  of  the  mort- 
gagee. On  the  other  hand,  in  the  case  of  mortgages  for  years, 
there  is  this  defect,  that  if  the  right  of  redemption  is  abandoned 
or  foreclosed,  the  mortgagee,  or  his  personal  representatives,  will 
only  be  entitled  to  the  term.  To  guard  against  this,  it  has  been 
thought  advisable,  in  some  cases,  to  make  the  mortgagor  cove- 
nant that,  on  non-payment  of  the  money,  he  will  not  only  con- 
firm the  term,  but  also  convey  the  freehold  and  inheritance  to 
the  mortgagee,  or  as  he  shall  appoint,  discharged  from  all  right 
of  redemption.1 

19.  There  is  another  kind  of  mortgage,  where  the  proviso  for 
redemption  does  not  oblige  the  mortgagor  to  pay  the  money  on 
a  particular  day,  but  allows  him  to  do  it  at  any  indefinite  time. 
This  is  called  a  Welsh  mortgage,  in  which  there  is  a  perpetual 
right  of  redemption.2 

20.  Legal  mortgages  are  made  by  a  transfer  of  the  legal  estate 


1  In  the  United  States,  the  subject  of  mortgages  has  universally  been  regulated,  to 
various  extents,  by  express  statutes,  by  which  the  executor  or  administrator  is  generally 
made  competent,  on  payment  of  the  money,  to  discharge  the  mortgage.  From  this, 
or  some  other  cause,  it  has  been  nearly  the  uniform  practice  to  make  the  mortgage  in 
fee  simple ;  and  a  mortgage  of  a  less  interest  than  the  mortgagor  owns  is  seldom 
known,  unless  in  special  cases. 

2  In  a  Welsh  mortgage,  the  profits  are  set  against  the  interest ;  and  of  course  there 
is  no  presumption  of  foreclosure,  arising  from  the  length  of  time  in  which  the  mort- 
gagee has  been  in  possession.  But  if  the  profits  are  excessive,  the  Court  will  decree 
an  account  against  the  mortgagee,  notwithstanding  the  agreement.  Talbot  v.  Braddil, 
1  Vera,  395;  Fulthrope  v.  Foster,  Ibid.  476;  1  Pow.  on  Mort.  373  a,  and  note  (e.) 
Sometimes  the  mortgage  is  made  upon  trust,  that  the  mortgagee  shall,  after  discharging 
the  interest  and  expenses,  apply  the  surplus  of  rents  and  profits  towards  the  payment 
of  the  principal  sum.  This  also  is  termed  a  Welsh  mortgage ;  of  which  a  precedent 
will  be  found  by  the  student  in  3  Pow.  on  Mort.  1148  a.  See  also  Coote  on  Mortgages, 
p.  207. 

VOL.  I.  47 


554  Title  XV.     Mortgage.     C/i.  I.  s.  20. 

to  the -mortgagee,  by  a  regular  conveyance.  But  an  agreement 
in  writing  to  transfer  an  estate  as  a  security  for  the  repayment  of 
a  sum  of  money  borrowed,1  or  even  a  deposit  of  the  title  deeds  of 
an  estate,  as  a  security,  will  create  what  is  called  an  equitable 
mortgage.2     And  Lord  Eldon  has  held  that  an  equitable  lien 


1  Delaine  v.  Keenan,  2  Desau.  74.  [A  valid  mortgage  of  real  estate  may  be  created 
bv  a  written  instrument  not  under  seal.  Woods  v.  Wallace,  22  Penn.  (10  Harris,)  171. 
And  an  agreement  in  writing,  though  not  witnessed  as  the  statute  requires  in  convey- 
ances of  real  estate,  intending  to  give  a  lien  on  real  estate  for  the  payment  of  a  debt,  is 
good  as  an  equitable  mortgage.     Mann  v.  Godfroy,  1  Mann.  (Mich.)  178.] 

2  Whether  the  deposit  of  title  deeds  alone  will  create  an  equitable  lien  on  the  land, 
in  any  of  the  United  States,  may  well  be  doubted.  No  case  is  found  in  which  this 
doctrine  has  been  actually  administered,  though  in  several  cases  it  has  been  adverted 
to  as  a  rule  of  law  in  England.  Its  history  in  that  country  is  thus  stated  by  Chancellor 
Kent.  "  It  is  now  well  settled  in  the  English  law,  that  if  the  debtor  deposits  his  title 
deeds  with  a  creditor,  it  is  evidence  of  a  valid  agreement  for  a  mortgage,  and  amounts 
to  an  equitable  mortgage,  which  is  not  within  the  operation  of  the  Statute  of  Frauds. 
The  earliest  leading  decision  in  support  of  the  doctrine  of  equitable  mortgages,  by  the 
deposit  of  the  muniments  of  title,  was  that  of  Russell  v.  Russell,  in  1783.  (1  Bro.  269.) 
It  was  followed  by  the  decision  in  Birch  u.  Ellames,  (2  Anst.  427  J  and  the  principle 
declared  is,  that  the  deposit  is  evidence  of  an  agreement  to  make  a  mortgage,  which 
will  be  carried  into  execution  by  a  court  of  equity,  against  the  mortgagor  and  all  who 
claim  under  him,  with  notice,  either  actual  or  constructive,  of  such  deposit  having 
been  made.  Lord  Eldon  and  Sir  William  Grant  considered  the  doctrine  as  pernicious, 
and  they  generally  expressed  a  strong  disapprobation  of  it,  as  breaking  in  upon  the 
Statute  of  Frauds,  and  calling  upon  the  Court  to  decide,  upon  parol  evidence,  what  is 
the  meaning  of  the  deposit.  But  the  decision  in  Russell  v.  Russell,  has  withstood  all 
the  subsequent  assaults  upon  it,  and  the  principle  is  now  deemed  established  in  the 
English  law,  that  a  mere  deposit  of  title  deeds  upon  an  advance  of  money,  without  a 
word  passing,  gives  an  equitable  lien.  The  decisions  on  this  subject  have,  however, 
shown  a  determined  disposition  to  keep  within  the  letter  of  the  precedents,  and  not  to 
<nve  the  doctrine  further  extension  ;  and  it  is  very  clear,  that  a  mere  parol  agreement 
to  make  a  mortgage,  or  to  deposit  a  deed  for  that  purpose,  will  not  give  any  title  in 
equity.  There  must  be  an  actual  and  bond  fide  deposit  of  all  the  title  deeds  with  the 
mortgagee  himself,  in  order  to  create  the  lien.  Nor  will  such  an  equitable  mortgage 
be  of  any  avail  against  a  subsequent  mortgage,  duly  registered  without  notice  of  the 
deposit ;  and  if  there  be  no  registry,  it  is  the  settled  English  doctrine,  that  the  mere 
circumstance  of  leaving  the  title  deeds  with  the  mortgagor  is  not,  of  itself,  in  a  case 
free  from  fraud,  sufficient  to  postpone  the  first  mortgagee  to  a  second,  who  takes  the 
title  deeds  with  his  mortgage,  and  without  notice  of  the  first  mortgage."  4  Kent, 
Comm.  150,  151.  See  also  2  Story,  Eq.  Jur.  §  1020,  where  the  passage  just  quoted 
is  mentioned  with  approbation.  No  American  case  is  cited  by  either  of  those  learned 
jurists  in  favor  of  this  doctrine.  In  England,  and  as  against  strangers,  this  kind  of 
mortgage,  by  the  deposit  of  title  deeds,  can  occur  only  in  those  cases  where  the  posses- 
sion of  them  can  be  accounted  for  in  no  other  manner,  except  from  their  having  been 
deposited  by  way  of  equitable  mortgage,  or  the  holder  being  otherwise  a  stranger  to 
the  title  and  to  the  lands.  Bozon  v.  Williams,  3  Y.  &  J.  150;  Allen  v.  Knight,  11 
Jur.  527.     And  see  ex  parte  Hooper,  19  Ves.  479.    The  circumstance  of  leaving  the 


Title  XV.     Mortgage.     Ch.  I.  s.  20.  555 

may  be  obtained  on  a  copyhold  estate  by  a  deposit  of  the  copy 
of  court  roll,  (a)1 

(a)  Edge  o.  WortMrigton,  1  Cox,  R.  211.    Hooper,  ex  par.  19  Ves.  476.    Ex  parte  Warner, 
19  Ves.  202.    Id.  209. 


title  deeds  in  the  hands  of  the  mortgagor  can  be  of  no  avail  here,  against  the  mort- 
gagee and  in  favor  of  a  subsequent  incumbrancer,  where  those  deeds  have  been  regis- 
tered •  because  it  is  the  general  and  probably  the  universal  practice  for  the  grantor  to 
retain  in  his  own  hands  all  the  muniments  of  his  title ;  copies  of  the  record  of  deeds 
beinc  competent  evidence  in  the  proof  of  title  in  all  cases,  except  those  of  the  grantor 
when  offered  by  the  grantee  himself,  who  has  the  primary  evidence  in  his  own  hands. 
1  Greenl.  on  Evid.  §  571,  n.  And  if  the  deeds  have  not  been  registered,  though  the 
leaving  of  them  in  the  hands  of  the  mortgagor  may  in  general  be  prima  facie  evidence 
of  gross  neglect,  especially  where  the  entire  premises  are  mortgaged  ;  yet  it  is  not  con- 
clusive, but  is  open  to  explanation  on  the  part  of  the  prior  mortgagee.  Berry  v.  Mutual 
Ins.  Co.,  2  Johns.  Ch.  R.  603 ;  Johnson  v.  Stagg,  2  Johns.  R.  510,  522 ;  Magwood  v. 
Lubbock,  1  Bailey,  Eq.  R.  382. 

1  There  are  three  descriptions  of  cases  which  are  treated  as  mortgages  in  Courts  of 
Equity.  First,  where  the  relation  of  debtor  and  creditor,  in  respect  of  the  money  which 
formed  the  consideration  of  the  conveyance,  is  still  subsisting  ;  for  here  it  is  manifest 
that  the  land  is  collateral  to  the  debt,  and  was  intended  merely  as  security  for  the  pay- 
ment. This  relation  is  essential  to  every  mortgage,  founded  on  the  agreement  of  the 
parties.  Conway  v.  Alexander,  7  Cranch,  218,  237  ;  Flagg  v.  Mann,  2  Sumn.  490, 534  ; 
Oldham  v.  Halley,  2  J.  J.  Marsh.  114.  Thus,  a  conveyance  to  the  creditor  in  trust  to 
satisfy  his  own  demand,  is  a  mortgage.  Channing  v.  Cox,  1  Rand.  306.  And  see 
James  v.  Johnson,  6  Johns.  Ch.  417  ;  2  Cowen,  246,  S.  C. ;  Reed  v.  Landale,  Harden, 
R.  6 ;  Vernon  v.  Bethell,  2  Eden,  110.     [Bank  of  Westminster  u.  Whyte,  3  Md.  Ch. 

Decis.  508.] 

Secondly,  cases  of  fraud  on  the  part  of  the  creditor,  or  of  such  misconduct  as  ought 
in  equity  to  admit  the  debtor  to  a  right  to  redeem  the  land.  Thus,  a  purchaser  at  a 
sheriff's  sale,  under  a  contract  with  the  debtor  that  he  may  redeem,  will  be  regarded 
only  as  a  mortgagee.  Yoder  v.  Standiford,  7  Monroe,  480;  2  Story,  Eq.  Jur.  §  1018. 
[Barkalew  v.  Taylor,  4  Halst.  Ch.  R.  206  ;  Cornell  v.  Pierson,  lb.  478.] 

Thirdly,  cases  where,  by  accident  or  mistake,  an  absolute  conveyance  was  made,  when 
only  a  mortgage  was  intended.     Joynes  v.  Statham,  3  Atk.  388,  389  ;  2  Story,  Eq.  Jur. 

§  1018,  768. 

In  all  these  cases,  parol  evidence  is  admissible  to  show  the  actual  transaction,  and 
the  circumstances  of  the  case.  1  Story,  Eq.  Jur.  §  153,  156,  330;  2  Story,  Eq.  Jur. 
§  770  a.  1018;  Marks  v.  Pell,  1  Johns.  Ch.  594  ;  Murphy  v.  Trigg,  1  Monroe,  73  ; 
Clark  v.  Henry,  2  Cowen,  324  ;  Washburn  v.  Merrills,  1  Day,  139  ;  Whittick  r.  Kane, 
1  Pai«-e,  202  ;  I  Pow.  on  Mortg.  120,  note  (2)  by  Mr.  Rand.  See  also  the  cases  cited 
by  Mr.  Perkins  in  his  edition  of  1  Bro.  Ch.  Ca.  86,  note  (a) ;  May  v.  Eastin,  2  Port. 
414;  Green  v.  Bonnell,  1  Green,  Ch.  264.  [Russell  v.  Southard,  12  How.  U.  S.  139  ; 
Bacon  v.  Brown,  19  Conn.  29  ;  Hodges  v.  Insurance  Co.  4  Selden,  416  ;  Cole  v.  Bolard, 
22  Penn.  (10  Harris,)  431  ;  Bank  of  Westminster  v.  Whyte,  1  Md.  Ch.  Decis.  536; 
Sellers  v.  Stalcup,  7  Ired.  Eq.  13  ;  Bryan  v.  Cowart,  21  Ala.  92  ;  Prewett  v,  Dobbs, 
13  S.  &  M.  431 ;  Jordan  v.  Fenno,  8  Eng.  (13  Ark.)  593  ;  Johnston  v.  Huston,  17  Mis. 
(2  Bennett,)  758;  Miller  v.  Thomas,  14  111.  428  ;  Cottrell  v.  Long,  20  Ohio,  464.] 
Where  the  deed  is  absolute  in  its  terms,  but  the  grantor  claims  it  to  be  in  truth  only 


556  Title  XV.     Mortgage.     Ch.  I.  s.  21—23. 


to  "o 


21.  When  the  Court  of  Chancery  assumed  a  jurisdiction  over 
mortgages,  it  became  an  established  rule  there  that  every  con- 
veyance of  a  real  estate,  for  the  purpose  of  securing  the  repay- 
ment of  a  sum  of  money,  should  be  considered  as  a  mortgage  ; 
that  all  restraints  imposed  upon  the  equity  of  redemption  should 
be  relieved  against ;  being  in  fact  terms  extorted  from  the  neces- 
sities of  the  borrower,  and  tending  to  usury  and  oppression. 
The  right  of  redemption  is  therefore  considered  in  equity  as 
inseparably  incident  to  a  mortgage,  and  cannot  be  restrained  by 
any  clause  or  agreement  whatever ;  it  being  a  rule  there,  that 
what  was  once  a  mortgage,  must  always  continue  to  be  a  mort- 
gage.1 

22.  Thus  a  proviso  to  redeem,  during  the  life  of  the  mortgagor 
only,  was  held  void ;  and  it  was  decreed  that  the  heir  of  the 
mortgagor  should  notwithstanding  redeem,  (a) 

23.  So,  where  the  right  of  redemption  was  restrained  to 
70  *       the  *  mortgagor  himself,  or  the  heirs  of  his  body,  it  was 
held  void  ;  and  -a  jointress  was  allowed  to  redeem,  (b) 

(a)  Jason  v.  Eyres,  2  Cha.  Ca.  32.  Orcle  v.  Smith,  Sel.  Ch.  Cas.  9;  2  Eq.  Cas.  Ab.  600,  S.  C. 

(b)  Infra,  c.  3. 

a  mortgage,  the  burden  of  proof  is  on  him,  to  show  the  real  intent  of  the  parties,  and 
that  the  present  form  of  the  transaction  arose  from  ignorance,  accident,  mistake,  fraud, 
or  undue  advantage  taken  of  his  situation.  McDonald  v.  McLeod,  1  Ired.  Eq.  E.  221  ; 
Lewis  v.  Owen,  Ibid.  291.  [6  Ired.  Eq.  38,  283;  8  lb.  192;  Bus.  Eq.  88;  Austin  v. 
Downer,  25  Vt.  (2  Deane,)  558.] 

In  Maine  and  Massachusetts,  the  statutes  recognize  only  two  modes  of  creating  a 
mortgage  to  which  the  chancery  jurisdiction  of  the  Courts  extend ;  namely,  by  proviso 
inserted  in  the  deed,  and  by  a  separate  deed  of  defeasance.  All  equitable  mortgages, 
created  by  contract  of  the  parties,  seem  therefore  to  be  excluded.  Relief,  if  any,  in 
other  cases,  must  be  referred  to  the  head  of  fraud,  trust,  or  accident  and  mistake.  See 
French  v.  Sturdivant,  8  Greenl.  250,  251 ;  Erskine  v.  Townsend,  2  Mass.  493;  Bodwell 
v.  Webster,  13  Pick.  411,  413  ;  Flint  v.  Sheldon,  13  Mass.  443  ;  Mass.  Rev.  St.  ch.107, 
§  34  ;  Maine  Eev.  St.  ch.  125,  §  1. 

[Equity  will  treat  as  a  mortgage,  a  deed  absolute  in  form,  when  it  appears  from  the 
bill,  answer  and  proofs  that  it  was  intended  merely  to  secure  a  debt,  or  indemnify 
against  liabilities.  Howe  v.  Russell,  36  Maine,  (1  Heath,)  115.  So  where  the  grantee 
admits  that  a  deed  absolute  on  its  face  was  given  him  as  security  for  indebtedness. 
Bigelowr.  Topliff,  25  Vt.  (2  Deane,)  273.] 

Such  is  also  the  law  of  New  Hampshire.  N.  Harnp.  Rev.  St.  ch.  131,  §  1,  2.  3; 
Lund  v.  Lund,  1  N.  Hamp.  39. 

i  Newcomb  v.  Borham,  1  Vera.  8.  See  also  2  Story,  Eq.  Jur.  1019;  Holridge  v. 
Gillespie,  2  Johns.  Ch.  34;  4  Kent,  Coram.  142;  Jaqucs  v.  Weeks,  7  Watts,  261  ; 
Wright  r.  Bates,  13  Verm.  R.  341  ;  Clark  v.  Henry,  2  Cowen,  R.  324  ;  Wheeland  v. 
Swartz,  1  Ycatcs.  584  ;  Crane  v.  Bonnell,  1  Green,  Ch.  264. 


Title  XV.     Mortgage.     Ch.  I.  s.  24—26.  557 

24.  Lands  were  mortgaged  with  a  special  clause,  that  if  the 
morto-ao-or,  or  the  heirs  male  of  his  body,  should  pay  the  money 
borrowed,  they  might  reenter ;  and  the  mortgagor  agreed  that 
no  one  but  himself,  or  the  heirs  male  of  his  body,  should  be  ad- 
mitted to  redeem.  The  mortgagor  having  died  without  issue, 
the  plaintiff  being  a  jointress  of  part  of  the  lands,  brought  her 
bill  to  redeem  the  mortgage.  It  was  insisted  for  her :  1.  That 
restrictions  of  redemption  in  mortgages  had  always  been  discour- 
aged, as  it  would  be  a  thing  of  mischievous  consequence  should 
they  prevail ;  for  then  it  would  become  a  common  practice,  and 
a  trade  amongst  scriveners,  to  fetter  mortgagors,  so  as  to  make 
it  impracticable  for  them  to  redeem,  according  to  the  precise 
letter  of  the  agreement.  2.  It  was  a  maxim  in  Chancery  that  an 
estate  cannot  at  one  time  be  a  mortgage,  and  at  another  time 
cease  to  be  so,  by  one  and  the  same  deed ;  and  a  mortgage  can 
no  more  be  irredeemable  than  a  distress  for  a  rent-charge  irre- 
pleviable. After  long  debate,  the  Lord  Keeper  decreed  that  the 
mortgage  should  be  redeemed  ;  the  rather  because  the  defendant 
had  a  covenant  for  repayment  of  his  mortgage  money,  (a) 

25.  Where  lands  are  mortgaged,  an  agreement  made  at  the 
time,  that  in  case  the  money  is  not  paid  on  a  particular  clay, 
the  conveyance  shall  become  absolute,  will  not  be  allowed  in 
Chancery.1 

26.  A  person  seised  of  lands  worth  £200  per  annum,  mort- 
gaged the  same  for  ,£250,  and  executed  a  deed  for  the  absolute 
conveyance  of  them  to  the  mortgagee,  if  the  money  was  not  paid 
at  the  end  of  seven  years.  The  Master  of  the  Rolls,  assisted  by 
Mr.  Justice  Hyde,  decreed  a  redemption  ;  for  the  mortgagee's 
father  having  exhibited  a  bill  against  the  mortgagor  for  the  land, 
or  the  money,  made  it  evident  that  it  was  a  mortgage  ;  therefore 
no  agreement  could  take  away  the  right  of  redemption,  (b) 

(a)  Howard  r.  Harris,  1  Venn.  33,  190.     (Wilcox  v.  Morris,  1  Murph.  117.) 

(b)  Bowen  v.  Edwards,  2  Rep.  in  Cha.  221. 

i  "  I  believe  no  case  can  be  found,  in  which  it'  has  been  determined  that  the  mort- 
gagee can,  by  force  of  any  agreement  made  at  the  time  of  creating  the  mortgage,  en- 
title himself,  at  his  own  election,  to  hold  the  estate  free  from  condition,  cutting  off  the 
right  in  equity  of  the  mortgagor  to  redeem."  Per  Hubbard,  J.,  in  Waters  v.  Randall. 
6  Met.  479,  484. 

[A  proviso  in  a  mortgage  that  the  whole  of  several  instalments  shall  become  due 
upon  failure  to  pay  any  instalment  on  the  day,  is  in  the  nature  of  a  penalty  against 
which  equity  will  relieve  upon  adequate  compensation.  Ticrnan  v.  Hinman,  16  111.  400.] 

47* 


558  Title  XV.     Mortgage.     Ch.  I.  s.  27—31. 

27.  An  agreement  that  in  case  money  lent  on  mortgage  is  not 
paid  on  the  day  appointed,  then  that  upon  payment  of  a  further 
sum  by  the  mortgagee,  the  conveyance  shall  become  absolute, 
will  not  be  allowed.1 

28.  A  person  mortgaged  his  estate  for  <£200,  and  at  the  same 
time  entered  into  a  bond  conditioned  that  if  the   £200  and  in- 
terest was  not  paid  at  the    day,  then  if   the  mortgagee 

71  *  should  pay*  the  mortgagor  the  further  sum  of  £78  in  full 
for  the  purchase  of  the  premises,  within  ten  days  after, 
the  bond  should  be  void,  or  else  should  stand  in  full  force.  The 
mortgagor  died  before  the  mortgage  became  forfeited,  leaving  his 
son  an  infant ;  and  the  £200  not  being  paid  at  the  day,  the 
mortgagee  paid  the  <£78.  The  son  of  the  mortgagor  brought  his 
bill  to  redeem.  The  defendant  by  his  answer,  insisted  that  it  was 
an  absolute  purchase  :  but  the  Court  decreed  a  redemption,  (a) 

29.  The  defendant  Ward  lent  £16,000  to  one  Neale  on  mort- 
gage, to  carry  on  his  buildings ;  and  in  another  deed,  executed  at 
the  same  time,  he  took  a  covenant  from  Neale  that  he  would 
convey  to  him,  if  he  thought  fit,  ground  rents  to  the  value  of 
£16,000,  at  the  rate  of  twenty  years'  purchase.  The  bill  being 
to  redeem,  the  defendant  insisted  on  that  agreement.  The 
Master  of  the  Rolls  decreed  a  redemption,  on  payment  of  prin- 
cipal, interest,  and  costs,  without  regard  to  that  agreement,  setting 
it  aside  as  unconscionable  ;  for  a  man  shall  not  have  interest  for 
his  money,  and  a  collateral  advantage  besides  for  the  loan  of  it ; 
or  clog  the  redemption  with  any  by  agreement,  (b) 

30.  No  subsequent  agreement  entered  into  by  the  creditors  and 
assignees  of  a  mortgage,  to  restrain  the  light  of  redemption  to  a 
particular  period,  will  be  deemed  valid  in  equity. 

31.  A  person  having  made  a  mortgage,  and  the  equity  of  re- 
demption being  subject  to  the  payment  of  several  debts,  the 
mortgagee  exhibited  his  bill  against  the  mortgagor,  and  all  the 
creditors,  that  they  should  redeem,  or  be  foreclosed.  Greaves, 
who  was  one  of  the  defendants,  and  also  a   creditor,  paid  the 

(*«)  Wfflet  r.  Winnell,  1  Vern.  488.     (Price  v.  Perrie,  2  Freem.  258.) 
lb)  Jennings  v.  Ward,  2  Tern.  520. 

1  But  where  the  mortgage  deed  contained  an  agreement  that  in  case  the  estate  was 
to  be  sold,  the  mortgagee  should  have  the  preemption  ;  the  agreement  was  held  bind- 
ing, if  claimed  in  a  reasonable  time.     Orby  v.  Trigg,  2  Eq.  Cas.  Abr.  599. 


Title   XV.     Mortgage.     Ch.  I.   s.  31—33.  559 

mortgage  money  with  the  consent  of  the  other  creditors ;  and 
agreed  with  them,  that  if  they  would  pay  the  money  advanced 
by  him,  at  a  further  day,  they  should  redeem ;  otherwise  that 
he  should  have  the  lands  absolutely.  The  creditors  failed  to 
pay  the  money  at  the  time  agreed  on ;  Greaves  enjoyed  the  lands 
for  twenty  years,  after  which  the  creditors  exhibited  their  bill  to 
redeem.  The  Lord  Keeper  decreed  a  redemption,  because  those 
lands,  by  the  new  agreement,  became  a  mortgage,  in  respect  of 
the  other  creditors,  in  the  hands  of  the  defendant ;  in  regard  of 
the  trust  and  confidence  which  they  had  in  the  defendant,  being 
all  creditors  alike ;  and  principally,  because  the  mortgagee 
had  assigned  *  to  Greaves  his  mortgage  only,  not  the  *72 
benefit  of  the  decree  for  foreclosing  the  redemption,  (a) 

32.  A  distinction  has  been  made  by  the  Court  of  Chancery 
between  contracts  originally  founded  upon  lending  and  borrowing 
money,  with  an  agreement  for  a  purchase  in  a  certain  event ;  and 
cases  where,  after  a  mortgage,  a  new  agreement  has  been  entered 
into,  and  executed  by  the  parties,  for  an  absolute  purchase ; 
although  there  be  a  subsequent  declaration  that  the  mortgagor 
may  have  his  estate  upon  payment  of  principal,  interest,  and 
costs ;  or  where  a  release  of  the  equity  of  redemption  is  given 
with  a  collateral  agreement  to  reconvey  upon  payment  of  the 
purchase-money  ;  for  in  these  cases  it  has  been  held  that  no  re- 
purchase shall  be  had,  unless  upon  a  strict  performance  of  the 
conditions  stipulated. 

33.  A,  being  a  joint  tenant  with  B,  her  sister,  made  an 
absolute  conveyance  to  C,  in  fee  for  .£104,  which  was  admitted 
to  be  intended  only  as  a  mortgage.  Some  time  after,  in  1708, 
those  deeds  were  cancelled;  and  then  A,  in  consideration  of 
£184,  including  the  £104,  paid  by  C,  conveyed  the  estate  ut 
supra,  but  with  a  further  covenant,  not  to  agree  to  any  partition 
without  C's  consent.  B  was  in  possession  till  1710,  when  C, 
ejecting  her  out  of  her  moiety,  enjoyed  it  quietly  till  1726,  at 
which  time  A  brought  a  bill  for  redemption,  to  which  C  pleaded 
himself  an  absolute  purchaser ;  the  receipts  given  for  the  money 
mentioned  it  to  be  purchase-money.  In  1710,  there  was  an 
agreement  that  A  might  have  the  estate  again  if  desired,  on 
payment  of  principal,  interest,  and  charges.     The  cause  was  first 

(a)  Exton  v.  Greaves,  1  Vern.  138.      ( Anou.  2  Haw.  20.)     Spurgion  V.  Collier,  1  Eden,  55. 
England  v.  Codrington,  Id,  169. 


560  Title  XV.     Mortsrasre.    Ch.  I.  s.  33—34 


S' 


heard  before  the  Master  of  the  Rolls,  who  dismissed  the  bill : 
afterwards  it  came  on  before  Lord  Talbot,  who  observed,  the  case 
was  very  dark.  The  first  deed  was  admitted  to  be  a  mortgage ; 
the  second  was  made  in  the  same  manner,  excepting  the  cove- 
nant respecting  the  partition,  which  was  the  darkest  part  of  the 
case ;  for  to  suppose  that  it  was  an  absolute  conveyance,  and  to 
take  a  covenant  from  one  who  had  nothing  to  do  with  the  estate, 
made  both  the  covenant  and  parties  vague  and  ridiculous ;  but 
that  it  would  be  equally  so,  if  the  deed  was  supposed  to  be  an 
actual  conveyance ;  so  that  it  was  of  no  great  weight,  and  ought 
to  be  laid  out  of  the  question.  He  was  inclined  upon  the  whole 
to  think  the  conveyance  in  1708  was  at  first  an  absolute 
73*  conveyance;  the  agreement  in  1710  for* the  repurchase 
showed  it  was  not  redeemable  at  first ;  the  acquiescence 
of  sixteen  years  upon  C's  possession  was  strong  evidence  of 
it.  The  decree  was  affirmed  upon  the  circumstances  of  the 
case,  (a) 

34.  Lands  in  Wales  were  mortgaged  for  £400.  Afterwards, 
neither  principal  nor  interest  being  paid  at  the  time  limited,  the 
mortgagee  brought  an  ejectment,  got  possession  of  the  premises, 
and  then  obtained  a  release  of  the  equity  of  redemption  from 
the  mortgagor  upon  payment  of  £350  more.  A  note  was  given 
at  the  time  of  executing  the  release,  that  the  releasee,  on  payment 
of  the  £750,  and  all  charges  of  repairs,  within  a  year,  by  the 
releasor,  would  sell  and  convey  to  him  the  premises.  Payment 
having  been  neglected  for  sixteen  years,  redemption  was  not 
allowed,  the  note  being  considered  as  an  original  agreement 
between  the  parties  to  sell  and  convey  the  premises  upon  the 
terms  therein  mentioned  ;  but  not  that  the  releasor  should  be  at 
liberty  to  redeem  the  same.  The  decree  was  affirmed  by  the 
House  of  Lords.  (&)' 

(a)  Cotterel  v.  Purchase,  Ca.  Temp.  Talbot,  61. 

(b)  Endsworth  v.  Griffith,  2  Ab.  Eq.  595.    5  Bro.  Pari.  Ca.  184. 


1  Where  a  mortgage  was  made  by  a  principal  debtor  to  indemnify  his  surety,  and 
after  the  surety  had  been  compelled  to  pay  the  debt,  the  parties  entered  into  a  fur- 
ther  agreement  in  writing  that  the  mortgagee  should  have  an  absolute  conveyance 
of  the  land  in  satisfaction  of  his  claim,  at  a  price  to  be  ascertained  by  appraisers ; 
and  that  if  the  value,  thus  found,  should  exceed  the  debt,  the  mortgagee  should  pay 
the  excess  in  one  year ;  it  was  held  in  Equity  to  be  a  valid  transfer  of  the  equity  of 
redemption ;  and  that  the  mortgagee,  upon  tender  of  the  excess  to  the  executor  of  the 
mortgagor,  was  entitled  to  an  absolute  conveyance.  Austin  v.  Bradley,  2  Day,  466. 


Title  XV.    Mortgage.     Ch.  I.  s.  35—38.  561 

35.  Where  money  is  lent  by  one  relation  to  another,  with  a 
proviso  that  if  it  be  not  repaid  on  a  certain  day,  the  land  shall  be 
settled  in  a  particular  manner,  for  the  benefit  of  the  family ;  a 
court  of  equity  will  not  decree  a  redemption. 

36.  A,  in  consideration  of  .£1000,  made  an  absolute  convey- 
ance to  B  of  the  reversion  of  certain  lands,  after  two  lives, 
which  at  that  time  were  worth  little  more.  By  another  deed  of 
the  same  date,  the  lands  were  made  redeemable  at  any  time 
during  the  life  of  the  grantor  only,  on  payment  of  £1000  and 
interest.  A  died,  not  having  paid  the  money :  it  was  held  by 
Lord  Nottingham,  that  his  heir  might  redeem,  notwithstanding 
this  restrictive  clause ;  and  that  it  was  a  rule,  once  a  mortgage, 
always  a  mortgage ;  that  B  might  have  compelled  A  to  redeem 
in  his  lifetime,  or  have  foreclosed  him.  But,  on  a  rehearing, 
Lord  Keeper  North  reversed  the  decree,  on  the  circumstances  of 
the  case ;  for  it  appeared  by  proof,  that  A  had  a  kindness  for  B, 
and  that  he  had  married  his  kinswoman,  which  made  it  in  the 
nature  of  a  marriage  settlement.  He  likewise  held  that  B  could 
not  have  compelled  A  to  redeem  during  his  life  ;  which  made  it 
the  more  strong,  (a) 

37.  A,  seised  of  a  copyhold  in  fee,  surrendered  it  upon  his 
marriage  to  the  use  of  himself  and  his  wife,  in  special 

tail,  remainder  *  to  her  in  fee,  upon  condition  that  if  he  *  74 
paid  £50  at  a  day  certain  to  the  daughter  that  the  wife 
had,  then  the  whole  surrender  should  be  void.  The  day  elapsed, 
the  c£50  not  paid,  and  the  husband  died  without  issue.  On  a  bill 
to  redeem  brought  by  his  heir  against  a  purchaser  from  the  wife, 
the  defendant  pleaded  that  he  was  a  purchaser  for  a  valuable 
consideration,  without  notice.  It  was  resolved  that  this  was  not 
originally  designed  for  a  mortgage,  but  that  the  party,  by  settling 
(  it  thus,  had  left  it  in  his  election,  either  to  perform  the  condition 
'  by  paying  the  money,  or  to  let  the  settlement  stand.  He  had 
chosen  the  latter,  and  the  plea  was  allowed,  (b) 

38.  A  distinction  has  been  likewise  made  between  mortgages 
and  defeasible  conditional  purchases,  subject  to  be  repurchased 
within  a  time  limited,  where  the  interest  is  taken  by  way  of  rent- 
charge.     For  in  the  latter  cases  the  stipulations  made  between 

(a)  Bonham  v.  Newoomb,  2  Vent.  364.    1  Ab.  Eq.  312.    (1  Vera.  7,  214,  232,  S.  C.) 

(b)  King  v.  Bromley,  2  Ab.  Eq.  595. 


562  Title  XV.     Mortgage.     Ch.  I.  s.  38—39. 

the  parties  must  be  strictly  adhered  to,  or  else  the  estate  of  the 
grantee  will  become  absolute.1 

39.  J.  S.  granted  a  rent-charge  of  ,£48  a  year  in  fee  to  B,  upon 
condition  that  if  J.  S.  should  at  any  time  give  notice  to  pay  in 
the  consideration  money,  being  £800,  by  instalments,  namely, 
£100  at  the  end  of  every  six  months,  and  should,  pursuant  to 
such  notice,  pay  the  same  and  interest,  at  any  time  during  his 
life,  then  the  grant  to  be  void.  There  was  no  covenant  for  J.  S. 
to  pay  the  money ;  and  the  rent-charge  was  much  less  than  what 
the  interest  came  to.  B  had  conveyed  it  over  after  J.  S.'s  death 
to  a  purchaser,  with  a  collateral  security  for  quiet  enjoyment, 
and  the  purchaser  had  afterwards  made  a  marriage  settlement 
upon  it.  The  question  was,  whether  it  was  redeemable  after 
sixty  years.  It  was  decreed  by  Lord  Cowper  that  it  was  not. 
He  observed, — It  was  material  that,  at  the  time  of  making  the 
mortgage,  interest  was  at  8  per  cent. ;  the  rent-charge,  therefore, 
was  much  less  than  the  interest  of  the  money,  consequently  the 
payment  of  the  rent-charge  could  not  be  taken  as  the  payment 
of  the  interest.  Several  circumstances  concurred  in  this  case, 
which,  though  each  of  them  singly  might  not  be  of  force  to  bar 

1  If  it  is  doubtful  whether  the  parties  intended  a  conditional  sale  or  a  mortgage, 
Courts  of  Equity  will  regard  it  as  a  mortgage,  such  construction  being  the  more  just 
and  equitable,  and  tending  to  prevent  oppression.  Poindexter  v.  McCannon,  Dev.  Eq. 
E.  373  ;  Skinner  v.  Miller,  5  Lit.  84  ;'  Secrest  r.  Turner,  2  J.  J.  Marsh.  471  ;  Edrington 
v.  Harper,  3  J.  J.  Marsh.  354  :  Crane  v.  Bonnell,  1  Green,  Ch.  264.  And  in  order  to 
ascertain  the  intention  of  the  parties,  Courts  will  look  not  only  to  the  deeds  and  writings, 
but  to  all  the  circumstances  of  the  contract ;  and  for  this  purpose  will  receive  parol  evi- 
dence. Robertson  v.  Campbell,  2  Call,  421  ;  King  v.  Newman,  2  Munf.  40 ;  Prince  v. 
Bearden,  1  A.  K.  Marsh.  170;  Oldham  v.  Halley,  2  J.  J.  Marsh.  114;  Thompson  v. 
Davenport,  1  Wash.  125.  [Brant  v.  Robertson,  16  Mis.  (1  Bennett,)  129.  Parol  evi- 
dence cannot  be  received  to  change  a  written  mortgage  into  a  conditional  sale.  Woods 
v.  Wallace,  22  Penn.  (10  Harris,)  171.]  Gross  inadequacy  of  price  is  of  itself  sufficient 
evidence  that  a  mortgage  and  not  a  conditional  sale  was  intended.  Conway  v.  Alex- 
ander, 7  Cranch,  218,  241 ;  Oldham  v.  Halley,  supra ;  Vernon  v.  Bethell,  2  Eden,  110. 
Where  the  debt,  forming  the  consideration  of  the  conveyance,  still  subsists,  or  the 
money  is  advanced  by  way  of  loan,  with  a  personal  liability  on  the  part  of  the  borrower 
to  repay  it,  and,  by  the  terms  of  the  agreement,  the  land  is  to  be  reconveyed  on  pay- 
ment of  the  money,  it  will  be  regarded  as  a  mortgage  ;  but  where  the  relation  of  debtor 
and  creditor  is  extinguished,  or  never  existed,  there,  a  similar  agreement  will  be  con- 
sidered as  merely  a  conditional  sale.  Robinson  v.  Cropsey,  2  Edw.  13S  ;  Conway  v. 
Alexander,  supra.  And  see  the  observations  of  Lord  Redesdalc,  in  Verner  v.  Win- 
Stanley,  2  Sch.  &  Lefr.  393  ;  and  of  Mr.  Justice  Story,  in  Flagg  v.  Mann,  2  Sumn.  533, 
534.  See  also  1  Pow.  Mortg.  138  a,  and  note,  (1.)  by  Mr.  Rand;  Waters  v.  Randall, 
6  Met,  479,  482.     ' 


Title  XV.     Mortgage.     Ch.  I.  s.  39—40.  563 

the  redemption,  yet,  joined  together,  were  strong  to  prevail  over 
it.  The  mortgagee  seemed  to  have  allowed  a  consideration  for 
purchasing  the  equity  of  redemption,  after  the  death  of 
the  mortgagor, — 1.  By  taking  the  rent  of  £48  * per  annum ;  *  75 
2.  By  agreeing  to  have  his  money  by  instalments ;  3.  By 
leaving  it  only  at  the  election  of  the  mortgagor,  whether  he  would 
redeem  or  not.  There  could  be  no  reason  given  why  such  a 
contingent  right  of  redemption  might  not,  upon  fair  and  equitable 
terms,  be  purchased.  Length  of  time,  where  so  great  as  in  this 
case,  was  a  good  bar  of  redemption  of  a  rent-charge,  as  well  as 
of  land ;  and  the  mortgagor  was  not  bound  to  pay  the  money  by 
any  covenant,  (a) 

The  reporter  observes,  that  from  the  turn  of  Lord  Cowper's 
argument,  length  of  time  seemed  to  be  his  principal  objection  to 
the  redemption.  But  in  the  following  case,  decided  by  Lord 
Hardwicke,  upon  an  appeal  from  the  Rolls,  the  doctrine  that 
such  limited  agreements  for  redemption,  or  rather  repurchase, 
were  legal,  is  confirmed. 

40.  A  mortgage  was  made  of  an  estate  by  the  plaintiff's  grand- 
father, Thomas  Mellor,  in  1689,  to  John  and  James  Whitehead. 
Afterwards,  on  the  5th  of  June  of  the  same  year,  the  Whiteheads 
mortgaged  the  same  estate  to  Cartwright  and  Haywood,  and 
their  heirs,  for  securing  £200;  to  which  Thomas  Mellor  and  his 
son  John  were  parties.  Cartwright  and  Haywood,  in  order  to 
secure  themselves  the  interest,  made  a  lease  to  the  plaintiff's 
father  and  to  his  assigns,  dated  12th  June,  1689,  for  5000  years, 
at  the  rate  of  ,£12  a  year  for  the  first  three  years,  and  £10  a  year 
for  the  remainder  of  the  term ;  and  if  in  the  space  of  three  years 
the  £200  was  not  paid  with  interest,  then  the  premises  were  to 
be  reconveyed.  Receipts  had  been  given,  sometimes  for  interest, 
and  sometimes  for  a  rent-charge.  The  last  receipt  was  in  1730. 
The  £200  lent  was  money  left  under  one  Sutton's  will  in  1687, 
and  directed  to  be  laid  out  in  the  purchase  of  lands  in  fee  in 
Lancashire  or  Cheshire ;  the  rents  to  be  applied  towards  clothing 
twenty-four  aged  and  needy  housekeepers.  The  estate  at  the 
time  of  the  mortgage  was  worth  £500  only ;  but  was  then  valued 
at  £900.  The  plaintiff,  on  the  20th  January,  1738,  had  given 
notice  that  he  would  pay  in  the  money ;  but  the  defendant,  a 

(a)  Floyer  v.  Lcvington,  1  P.  Wras.  268. 


564  Title  XV.     Mortgage.     Ch.  I.  s.  40—41. 

new  trustee  of  the  charity,  had  refused  to  take  it,  insisting  that 
it  was  an  absolute  purchase.  It  was  so  decreed  by  Mr.  Fortes- 
cue,  Master  of  the  Rolls.  Upon  an  appeal  to  Lord  Hardwicke, 
he  said  the  bill  was  properly  dismissed,  not  so  much  upon  gen- 
eral rules,  as  upon  the  particular  circumstances  of  the  case,  and 

the  similitude  of  it  to  Floyer  v.  Levington.  (a) 
76  *  *  41.  King  James  I.,  by  his  letters-patent  under  the  great 

seal,  granted  divers  lands  to  John  King  and  John  Bingley, 
and  their  assigns,  for  116  years,  at  a  certain  yearly  rent.  The 
residue  of  this  term  became  vested  in  John  Tasburg.  King 
Charles  I.,  by  letters-patent,  granted  the  same  premises  to  Sir 
Maurice  Eustace  and  his  heirs,  at  a  like  rent,  but  without  reciting 
or  taking  any  notice  of  the  term  of  116  years.  Sir  Maurice,  by 
his  will,  devised  the  premises  inter  alia  to  his  nephew,  Sir  John 
Eustace,  in  fee.  The  premises  being  only  of  the  clear  yearly 
value  of  £200,  Sir  John  Eustace,  in  consideration  of  £200  paid 
him  by  John  Tasburg,  by  lease  and  release,  in  May,  1681,  con- 
veyed the  same  to  Charles  Tasburg  and  his  heirs,  in  trust  for 
John  Tasburg.  In  the  release  there  was  a  proviso  to  the  follow- 
ing effect,  viz.  that  if  Sir  John  Eustace,  his  heirs,  executors, 
or  administrators,  should  pay  to  Charles  Tasburg,  his  executors, 
administrators,  or  assigns,  at  the  end  of  five  years,  the  sum  of 
■£200  with  full  interest  for  the  same,  at  10  per  cent,  according  to 
the  custom  of  Ireland,  then  it  should  be  lawful  to  him  and  his 
heirs  to  reenter,  and  the  same  to  repossess  and  enjoy  as  in  his 
former  right.  But  if  Sir  John,  his  heirs,  executors,  or  adminis- 
trators, should  fail  in  payment  of  the  money  with  interest,  at  the 
time  limited,  then  the  estate  of  the  said  Charles  Tasburg  should 
be  absolute  and  indefeasible,  as  well  in  equity  as  in  law ;  that 
Sir  John,  his  heirs  and  assigns,  should,  on  failure  of  payment,  as 
aforesaid,  be  forever  debarred  from  all  right  and  relief  in  equity, 
against  the  tenor  of  the  said  release  ;  and  Sir  John  did  thereby, 
for  himself  and  his  heirs,  release  unto  Charles  Tasburg,  his  heirs 
and  assigns,  forever,  all  his  right  in  equity  to  redeem  the  premises, 
in  case  of  failure  of  payment  as  aforesaid.  There  was  no  cove- 
nant in  the  deed  on  the  part  of  the  grantor  to  repay  the  £200  or 
the  interest  thereof,  as  is  usual  in  mortgages. 

The  five  years  mentioned  in  the  proviso  being  elapsed,  and  no 
part  of  the  £200  or  the  interest  having  been  paid,  John  Tasburg, 

(a)  Jlellor  v.  Lees,  2  Atk.  494. 


Title  XV.     Mortgage.     Ch.  I.  s.  41.  565 

having  no  remedy  at  law  to  compel  the  payment,  the  estate  being 
only  a  reversion  expectant  upon  the  determination  of  a  term,  of 
which  there  were  then  forty-three  years  unexpired,  exhibited  a 
bill  against  Sir  John  Eustace  in  the  Court  of  Chancery  of  Ireland, 
in  the  name  of  Charles  Tasburg,  setting  forth  the  nature  of  the 
conveyance,  and  praying  payment  at  a  certain  day,  or 
that  the  conditional  estate  of  Charles  Tasburg  in  the  *pre-  *77 
mises,  in  case  it  should  be  adjudged  to  be  a  defeasible  or 
redeemable  estate,  should  be  made  absolute  to  him  and  his  heirs  ; 
in  that  case,  that  Sir  John  Eustace,  might  be  foreclosed  of  all 
right  or  equity  of  redemption  of  the  premises,  and  might  make 
further  absolute  conveyances  and  assurances  to  the  said  Charles 
Tasburg,  according  to  the  tenor  and  true  meaning  of  the  inden- 
tures of  lease  and  release.  Sir  John,  being  served  with  a  subpoena 
to  answer  this  bill,  stood  out  all  process  of  contempt  to  a  seques- 
tration ;  and  never  having  put  in  his  answer,  a  decree  was  made 
that  he  should  be  foreclosed,  unless  the  principal,  interest,  and 
costs  were  paid  on  the  11th  December,  1689.  Sir  John  Eustace 
lived  till  the  year  1706,  when  he  died  without  issue  ;  and  never 
took  any  step  to  impeach  the  decree,  or  to  seek  redemption,  but 
acquiesced  under  it  for  eighteen  years.  Henry  Tasburg  suc- 
ceeded to  this  estate  on  the  death  of  his  father  John  in  1691,  and 
entered  thereupon  ;  but  the  value  of  lands  in  Ireland  having  risen 
considerably,  a  bill  was  exhibited  in  the  Court  of  Chancery  there, 
in  1723,  by  the  co-heirs  of  Sir  John  Eustace,  alleging  that  the 
decree  of  foreclosure  was  obtained  by  surprise,  fraud,  and  imposi- 
tion ;  and  praying  it  might  be  reversed.  Henry  Tasburg  put  in 
a  plea  and  an  answer  to  this  bill,  insisting  on  his  title,  pleading 
the  lease  and  release  in  1681,  the  decree  of  foreclosure,  the  great 
length  of  time,  and  acquiescence  under  the  decree.  It  was 
decreed,  that  upon  the  plaintiffs  paying  the  principal,  interest,  and 
costs  due,  they  should  recover  the  lands. 

Upon  an  appeal,  in  1733,  to  the  House  of  Lords  of  England, 
it  was  insisted  on  behalf  of  Tasburg,  that  there  ought  to  be  no 
redemption  upon  any  terms  whatever,  it  being  expressly  agreed 
by  the  release,  that  if  the  money  was  not  paid  within  five  years, 
the  estate  should  be  irredeemable.  It  ought,  therefore,  to  be 
considered  as  a  conditional  purchase,  and  the  rather,  because  there 
was  no  covenant  on  the  part  of  Sir  John  Eustace  to  pay  the 
money ;  that  as  the  appellant  Tasburg,  or  those  under  whom  he 

vol.  i.  48 


566  Title  XV.     Mortgage.     Ch.  I.  5.  41. 

claimed,  could  not  compel  payment,  it  ought  not  to  have  been 
decreed  a  mortgage  ;  for  in  cases  of  mortgages  the  remedy  should 
be  reciprocal,  consequently  no  equity  of  redemption  could  arise 

or  spring  from  the  condition  contained  in  the  release ;  for 
78  *      the  supposed  pledge  was  only  a  reversion  expectant  *  on  a 

long  term  for  years,  whereof  no  less  than  forty-three  were 
then  to  come,  during  which  time  it  could  yield  no  manner  of 
fruit  or  profit;  and,  in  reality,  the  £200  was  more  than  sufficient 
consideration  for  the  absolute  purchase  of  the  reversion,  as  lands 
were  usually  sold  in  Ireland  at  that  time,  and  for  near  twenty 
years  after  :  that  the  decree  of  1688  ought  to  be  binding  on  Sir 
John  Eustace,  and  upon  the  respondents,  as  deriving  under  him ; 
and  ought  not,  at  such  a  distance  of  time,  to  be  impeached  or 
altered. 

On  behalf  of  the  respondents,  it  was  said  that  the  nature  of  the 
transaction,  and  the  very  deeds  themselves,  evidently  showed 
that  they  were  originally  intended  as  a  mortgage,  not  as  a  pur- 
chase. It  was  plain  that  John  Tasburg  understood  them  so  to 
be,  by  bringing  his  bill  of  foreclosure.  That  courts  of  equity 
had,  on  all  occasions,  relieved  against  restraints  imposed  upon  the 
equity  of  redemption ;  had  admitted  the  mortgagor  to  redeem, 
notwithstanding  the  expiration  of  the  time  limited  by  the  parties 
for  that  purpose ;  and  had  always  considered  clauses  of  this 
nature  as  terms  extorted  from  the  necessities  of  the  borrower, 
tending  to  usury  and  oppression.  Nor  could  any  case  be  more 
proper  for  relief  than  this,  where  the  redeemable  interest  did  not 
commence  in  possession  till  1724,  and  where  the  mortgagee  was 
attempting  to  gain  an  estate  of  £900  per  annum  for  so  small  a 
consideration  as  £200.     The  decree  was  reversed,  (a)  1 

(a)  Tasburg  r.  Echlin,  2  Bro.  Par.  Ca.  255.     Sevier  v.  Greenway,  19  Yes.  413. 


1  The  general  rule  is  well  settled,  that  the  mortgagee  shall  not  be  permitted  to  con- 
tract with  the  mortgagor  at  the  time  of  the  loan  for  an  absolute  purchase  of  the  land, 
in  case  the  money  is  not  paid  at  the  appointed  time.  Supra,  §  25.  But  this  case  of 
Tasburg  v.  Echlin  has  been  thought  by  some  to  justify  an  exception  to  this  rule,  where 
the  payment  of  the  money  advanced  and  interest  is  limited  to  a  particular  period.  See 
1  Pow.  on  Mortg.  133.  But  Mr.  Coote  observes  that  this  case  was  determined  on  cir- 
cumstances so  special  that  it  is  scarcely  an  authority  for  any  subsequent  case,  and  is 
hardly  applicable  to  the  point  to  which  it  has  been  adduced.  Coote  on  Mortg.  p.  30 — 
33. 

It  has  in  one  case  been  held,  even  under  the  general  rule,  that  a  deed  of  bargain  and 


Title  XV.     Mortgage.     Ch.  I.  s.  42-44.  567 

42.  A  power  may  be  given  to  a  mortgagee,  in  case  the  money 
borrowed  be  not  paid  at  the  time  stipulated,  to  sell  the  estate 
absolutely,  which  will  be  supported  in  equity. 

43.  A  conveyance  of  lands  was  made  by  lease  and  release  by 
A  to  B  and  his  heirs ;  by  a  defeasance,  bearing  date  with  the 
release,  it  was  agreed,  that  if  A  repaid  X1000,  &c,  borrowed  of 
B,  and  two  other  sums  borrowed  of  other  persons,  which  B  had 
taken  upon  himself  to  pay  off  within  a  year,  then  B  should 
reconvey  to  him  :  if  he  failed  to  pay  the  money  within  the  year, 
then  B  should  mortgage  or  absolutely  sell  the  lands,  free  from 
redemption ;  and  out  of  the  money  raised  by  such  mortgage  or 
sale,  pay  the  said  £1000,  &c,  with  interest,  and  be  accountable 
for  the  overplus  to  A  and  his  heirs.  The  money  not  being  paid 
at  the  time  stipulated,  B  agreed  to  convey  the  estate  for  a  certain 
sum  of  money.  In  the  agreement,  and  also  in  the  convey- 
ance, *  an  exception  was  made,  in  which  the  defeasance  *  79 
was  mentioned.     The  Court  said,  the  mortgagor  might 

have  redeemed  at  any  time,  while  the  estate  continued  in  B  ;  and 
though  B  had  a  power,  on  non-payment  within  the  year,  to  mort- 
gage or  sell,  in  order  to  raise  the  money  lent,  and  to  be  account- 
able for  the  overplus,  it  was  not  then  to  be  considered  what  he 
might  have  done,  but  what  he  had  done.  It  was  evident  that  it 
was  not  B's  intention  to  convey  an  absolute  and  indefeasible 
estate,  for  he  had  not  conveyed  it  absolutely,  and  free  from  the 
equity  of  redemption,  but  had  insisted  upon  having  the  defeas- 
ance inserted,  (a) 

It  is  clear,  from  the  above  statement,  that  the  Court  admitted 
the  validity  of  the  power  of  sale ;  and  the  same  doctrine  was 
fully  assented  to  in  the  following  case. 

44.  A  mortgage  of  leaseholds  was  made  to  a  trustee  in  1798, 
with  the  usual  power  of  redemption.  It  was  agreed  that,  if 
default  should  be  made  in  payment  of  the  money,  the  trustee 

(a)  Croft  v.  Powell,  Com.  E.  603. 


sale,  with  a  proviso  avoiding  it  on  the  repayment  of  the  purchase-money  by  the  vendor 
is,  prima  facie,  and  in  the  absence  of  any  fraud,  merely  a  conditional  sale.  Fleming  v. 
Sitton,  1  Dev.  &  Bat.  Eq.  It.  621.  But  it  is  equally  a  well-known  rule,  that  Courts  of 
Equity  lean  strongly  against  contracts  with  liberty  to  repurchase,  where  the  liberty 
thus  secured  is  part  of  the  original  transaction  ;  and  will,  if  possible,  bring  them  to  be 
cases  of  redemption.  Longuet  v.  Scawcn,  1  Ves.  402,  406.  And  see  Elagg  v.  Mann, 
2  Sumn.  534. 


568        (      Title  XV.     Mortgage.     Ch.  I.  s.  44—45. 

might  sell  the  estate,  pay  off  the  mortgage  money,  and  give  the 
residue  to  the  mortgagor.  Default  was  made  in  payment  of  the 
money.  The  trustee  sold  the  estate  by  public  auction.  The 
purchaser  required  the  concurrence  of  the  mortgagor,  who  re- 
fused to  join,  insisting  that  the  sale  was  made  without  his 
consent,  and  at  an  undervalue ;  upon  which  the  purchaser  filed 
a  bill  against  the  trustee  and  the  mortgagor,  who  afterwards 
becoming  a  bankrupt,  he  filed  a  supplemental  bill  against  his 
assignees.  Upon  the  hearing  of  the  cause,  the  Court  dismissed 
the  bill  as  against  the  mortgagor  and  his  assignees,  with  costs ; 
and  decreed  a  specific  performance  against  the  trustee  and  his 
cestui  que  trust,  (a)  1 

45.  [Where  a  mortgage  deed  with  a  power  of  sale,  provided 
that  the  surplus  arising  from  such  sale  was  to  be  paid  to  the 
mortgagor,  his  executors  or  administrators,  it  was  in  a  late  case 
decided  that,  if  the  estate  had  been  sold  in  the  lifetime  of  the 
mortgagor,  the  surplus  moneys  would  have  been  personal  estate ; 
but  the  estate  not  being  sold  at  the  mortgagor's  death,  the  equity 
of  redemption  descended  to  his  heir,  and  that  he  was  entitled  to 
the  surplus  arising  from  the  sale.]  (b) 

(a)  Clay  v.  Sharpe,  Lib.  Eeg.  Mich.  1802,  fo.  66.  Sugd.  on  Vend.  6th  ed.  App.  XIV. 
Corder  v.  Morgan,  18  Ves.  344.     Anon.  6  Mad.  &  Geld.  10. 

(b)  Wright  r.  Rose,  2  Sim.  &  Stu.  323. 


1  The  validity  of  a  power  to  sell,  vested  in  the  mortgagee,  was  doubted  by  Lord 
Eldon,  in  Roberts  v.  Bozon,  MSS.  mentioned  in  1  Pow.  Mortg.  9,  a,  note  by  Mr. 
Hand  ;  and  various  methods  have  been  suggested,  to  effect  the  object  of  a  speedy 
payment  out  of  the  proceeds  of  sale  of  the  lands,  without  encountering  the  objections 
taken  to  the  possession  of  such  power  by  the  mortgagee.  Ibid.  p.  9 — 13.  But  the 
validity  of  the  power  is  now  generally  admitted,  both  in  the  United  States  and  in 
England ;  it  being  subject  to  the  control  of  Chancery,  when  about  to  be  exercised  in  a 
manner  oppressive  to  the  debtor.  Matthie  v.  Edwards,  2  Coll.  C  C.  465  ;  10  Jur.  347  ; 
11  Jur.  761  ;  Jones  v.  Matthie,  11  Jur.  504.  In  Virginia,  its  validity  has  been  denied ; 
Chcwning  v.  Cox,  1  Rand.  306 ;  unless  ratified  by  the  mortgagor,  subsequent  to  the  sale. 
Taylor  v.  Chewning,  3  Leigh,  654.  A  sale  under  such  power  is  final  and  conclusive, 
in  favor  of  bond  fide  purchasers;  and  is  a  foreclosure  and  bar  to  the  equity  of  redemp- 
tion. Jackson  v.  Henry,  10  Johns.  185;  Carson  v.  Blakey,  6  Missouri  R.  273;  Eaton 
v.  Whiting,  3  Pick.  484,  491  ;  Kinsley  v.  Ames,  2  Met.  29 ;  Waters  v.  Randall,  6  Met. 
483,  484.  This  power  of  sale  is  regulated  by  particular  statutes  in  New  York,  and  in 
several  other  States  ;  see  post,  ch.  6.  §  1,  note;  but  the  provisions,  so  far  as  the  present 
point  is  regarded,  are  merely  in  affirmance  of  the  common  law.  See  Doolittle  v. 
Lewis,  7  Johns.  Ch.  50;  Demarest  v.  Wynkoop,  3  Johns.  Ch.  144 — 146;  Wilson  v. 
Troup,  7  Johns.  Ch.  25,  affirmed  in  2  Cowen,  195. 

The  power  in  the  mortgagee  to  sell,  being  coupled  with  an  interest,  is  irrevocable, 


Title  XV.     Mortgage.     Ch.  L  s.  45.  569 


"6 


and  therefore  may  be  executed  even  after  the  death  of  the  mortgagor.  Bergen  v. 
Bennett,  1  Caines,  Cas.  in  Er.  1.  After  a  sale  under  such  power,  the  interest  of  the 
mortgagor  in  possession  is  wholly  divested,  and  he  becomes  a  tenant  at  sufferance. 
Kinsley  v.  Ames,  2  Met  29.     See  4  Kent,  Comm.  146,  147. 

[A  mortgage  of  a  leasehold  estate  described  by  metes  and  bounds,  is  only  an  assign- 
ment of  the  rents,  and  the  mortgage  not  conferring  a  power  of  sale,  the  annual  rent 
only  can  be  received  by  the  mortgagee,  and  his  debt  may  be  enforced  upon  other 
securities  in  the  mortgage.    Hulet  v.  Soullard,  26  Vt.  (3  Deane.,)  295.] 


570 


CHAP.  II. 


SEVERAL   INTERESTS   OF   THE  MORTGAGOR  AND  MORTGAGEE. 


Sect.     1.   What   is   the  Nature   of  the 
Mortgagor's  Estate. 

4.  Cannot  commit  Waste. 

5.  Nor  male  Leases. 

9.  After     Forfeiture     has     an 
Equity  of  Redemption. 
10.   The  Mortgagee  has  the  Le- 
gal Estate. 


Sect.  20.  A  Renewal  of  a  Lease  will 
be  a  Trust  for  the  Mort- 
gagor. 

21.  Must  account  for  the  Profits. 

30.  An  Assignee  only  entitled  to 
what  is  really  due. 

32.  A  Mortgage  is  Personal 
Estate. 


wise. 
39.  But   the  Land  must   he 
conveyed. 


12.  Entitled  to   Rent   after   No-  36.   Unless  the  Intention  he  other- 

tide. 

14.  Subject  to  Covenants. 

15.  Cannot  commit  Waste. 
18.  Nor  make  Leases. 

Section  1.  Upon  the  execution  of  the  conveyance  by  which 
a  mortgage  is  created,  the  legal  estate  of  freehold  and  inheritance, 
or  the  legal  estate  for  the  term  of  years  created  by  the  mortgage, 
becomes  immediately  vested  in  the  mortgagee.1  As,  however,  the 
actual  possession  of  the  lands  is  scarcely  ever  given  to  the  mort- 
gagee ;  but,  on  the  contrary,  a  clause  is  usually  inserted  in  the 
mortgage  deed,  that  until  default  is  made  in  payment  of  the 
mortgage  money  and  the  interest,  the  mortgagor  shall  retain  the 
possession  and  receive  the  rents  ;  he  becomes,  in  most  respects, 
tenant  at  will,  to  the  mortgagee.2     And  it  is  said  that  where  there 

1  Where  the  mortgage  of  a  term  contained  the  usual  proviso  of  defeasance,  on  the 
payment  of  principal  and  interest  at  certain  periods,  with  a  power  in  the  mortgagee  to 
sell  after  three  months'  notice,  in  case  of  non-payment ;  the  mortgagor  covenanting  to 
pay,  and  that  the  mortgagee,  at  any  time  after  default,  might  enter  and  take  the  rents 
and  profits  for  the  residue  of  the  term;  it  was  held  that  the  mortgagee  might,  by  virtue 
of  the  deed,  enter  before  default,  and  before  any  day  named  for  payment.  Rogers  v. 
Grazebrook,  8  Ad.  &  El.  895,  N.  S.  [In  Georgia,  a  mortgage  does  not  transfer  the 
legal  estate.  It  is  an  incumbrance  or  security  for  debt  only.  Ragland  v.  The  Jus- 
tices, 10  Geo.  65.] 

2  He  is  not  strictly  a  tenant  at  will ;  for  no  rent  is  reserved ;  and  so  long  as  he  pays 
the  interest,  he  is  not  liable  for  rents  and  profits  in  the  character  of  receiver.  Nor  is  he 
entitled  to  emblements.  Nor,  to  notice  to  emit.  See,  as  to  notice  to  quit,  ante,  tit.  9, 
ch.  1,  §  17,  note;  4  Kent,  Comm.  155,  156;  Rockwell  v.  Bradley,  2  Conn.  R.  1  ; 
Birch  v.  Wright,  1  T.  R.  383,  per  Buller,  J. ;  Fitchburg  Man.  Co.  v.  Melvin,  15  Mass. 
268 ;  Wilder  v.  Houghton,  1  Pick.  87. 


Title  XV.     Mortgage.     Ch.  II  s.  1.  571 

is  a  proviso  that  the  mortgagor  shall  continue  in  possession,  for 
the  number  of  years  given  for  repayment  of  the  mortgage  money, 
he  will  then  be  tenant  for  years  to  the  mortgagee.!  (a) 1 

(a)  Cholmondeley  v.  Clinton,  2  Mer.  359.    Powseley  v.  Blackman,  Cro.  Jac.  659. 


[t  In  Partridge  v.  Bere,  8  Bar.  &  Aid.  €04,  and  Hall  v.  Surtees,  lb.  616,  it  was  held 
that  a  tenancy  of  some  sort  subsisted  between  the  mortgagor  in  possession,  and  the 
mortgagee.  In  Doe  v.  Maisey,  8  Bar.  &  Cress.  767,  Lord  Tenterden  observed,  the 
mortgagor  is  not  in  the  situation  of  a  tenant  at  all,  or  at  all  events,  he  is  not  more  than 
tenant  at  sufferance  ;  but  in  a  peculiar  character,  and  liable  to  be  treated  as  tenant  or 
as  trespasser  at  the  option  of  the  mortgagee.  In  Doe  v.  Giles,  5  Bing.  431,  it  was  de- 
creed that  where  the  mortgagor  remained  in  possession,  and  the  money  was  not  repaid 
on  the  day  stipulated,  the  mortgagee,  who  had  a  power  of  entry  and  sale  on  non-pay- 
ment, might  eject  a  mortgagor  without  notice  to  quit  or  demand  of  possession.  See 
Stat.  3  &  4  Will.  4,  c.  27,  §  7.J 

1  The  relations  between  the  mortgagor  and  the  mortgagee  have  been  stated  by  Mr. 
Coote,  as  follows  : — 

"  First.  If  in  the  mortgage  deed  there  is  the  usual  proviso  for  the  enjoyment  of  the 
land  by  the  mortgagor  and  his  heir,  until  default  in  payment,  &c.,  and  the  mortgagor 
is  in  actual  possession,  he  may,  under  the  agreement,  be  regarded  as  tenant  for  years  to 
the  mortgagee  during  the  continuance  of  the  agreement;  and  on  his  death  during  the 
agreement,  it  is  considered  that  his  legal  interest  might  be  considered  as  devolving  on 
his  executors,  who,  during  the  remainder  of  the  agreement,  might  be  regarded  as  trus- 
tees for  the  heir  of  the  mortgagor.     Powseley  v.  Blackman,  Cro.  Jac.  659. 

"  Secondly.  If  in  the  case  of  such  agreement,  the  money  is  not  paid  at  the  appointed 
time,  and  the  mortgagor  continues  in  possession  after  the  determination  of  the  agree- 
ment, without  any  fresh  agreement  between  the  parties,  he  is,  until  payment  of  interest, 
or  other  recognition  of  tenancy,  tenant  by  sufferance,  for  he  came  in  by  a  rightful  title, 
although  he  holds  over  wrongfully. 

"  Thirdly.  If  the  mortgage  deed  contains  no  such  agreement,  and  the  mortgagor  re- 
mains the  actual  occupant  with  the  consent  of  the  mortgagee,  he  is  strictly  tenant  at 
will.     Keech  v.  Hall,  1  Dougl.  22. 

"  Fourthly.  If,  in  the  latter  instance,  the  mortgage  is  transferred  to  another,  without 
the  concurrence  of  the  mortgagor,  the  tenancy  at  will  is  determined,  and  the  mortgagor 
becomes  tenant  by  sufferance  to  the  assignee  until  payment  of  interest  or  other  recog- 
nition of  tenancy ;  and  in  all  cases  in  which  the  mortgagor  can  be  considered  tenant  at 
will,  the  death  either  of  himself  or  of  the  mortgagee  must  determine  the  tenancy.  If 
it  is  determined  by  the  death  of  the  latter,  the  mortgagor  will  be  tenant  by  sufferance 
to  the  representative  of  the  mortgagee,  until  payment  of  interest  or  other  recognition 
of  tenancy,  and  afterwards  tenant  at  will.  If  it  is  determined  by  the  death  of  the 
mortgagor,  and  his  heir  or  devisee  enter  and  hold  without  any  recognition  of  the  mort- 
gagee's title  by  payment  of  interest,  or  other  act,  an  adverse  possession  may  be  con- 
sidered to  take  place.  Smartle  v.  Williams,  3  Lev.  387,  and  1  Salk.  245  ;  Thunder  v. 
Belcher,  3  East,  449  ;  per  Holt,  in  Smartle  v.  Williams,  1  Salk.  245. 

"  Fifthly.  In  every  case  in  which  a  tenancy  by  sufferance  exists  between  the  parties, 
and  even  where  an  adverse  possession  commences,  as  by  the  entry  of  the  heir  or  devisee 
of  the  mortgagor  without  the  consent  of  the  mortgagee,  the  payment  of  interest  is  a 
recognition  of  the  title  of  the  mortgagee,  and  evidence  of  an  agreement  that  the  mort- 


572  Title  XV.     Mortgage.     Ch.  II.  s.  2. 

81  *  *  2.  It  was  formerly  doubted  whether  an  assignment  by 

a  mortgagee  alone  did  not  operate  so  as  to  make  the  mort- 
gagor's continuing  in  possession,  under  the  above  clause,  a  dis- 
seisin, or  divesting  of  the  term,  and  turn  it  to  a  right ;  for  if  it  did, 
the  assignee  could  not  assign  it  over,  without  making  an  entry,  or 

gagor,  or  person  deriving  title  from  him,  shall  hold  at  will,  and  a  strict  tenancy  at  will 
commences.     Holland  v.  Hatton,  Carth.  414  ;  and  10  Vin.  Ab.  418,  pi.  19. 

"  Sixthly.  If  the  land  is  in  the  occupation  of  tenants,  and  the  mortgagor  is  per- 
mitted to  receive  the  rents,  he  has  been  considered  to  be  a  receiver  for  the  mortgagee, 
but,  as  hereafter  explained,  without  liability  to  account.  Moss  v.  Gallimore,  1  Dougl. 
283.  Yet,  as  to  this,  vide  Ex  parte  Wilson,  2  Ves.  &  Bea.  252,  in  which  Lord  Eldon 
expressed  his  surprise  at  the  mortgagor  being  considered  as  a  receiver  for  the  mortgagee, 
and  attributed  the  doctrine  to  a  misapplication  of  the  principles  of  equity."  See  Coote 
on  Mortg.  327—330. 

The  American  doctrine,  as  now  generally  settled  both  at  law  and  in  equity,  is,  that 
as  to  all  the  world  except  the  mortgagee,  the  freehold  remains  in  the  mortgagor,  as  it 
existed  prior  to  the  mortgage.  Of  course  he  retains  all  his  civil  rights  and  relations  as 
a  freeholder,  and  may  maintain  any  action  for  an  injury  to  his  inheritance  or  posses- 
sion, as  before.  He  may  also  convey  the  legal  estate  to  a  third  person,  subject  to  the 
incumbrance  of  the  mortgage.  Blaney  v.  Bearce,  2  Greenl.  132 ;  Willington  v.  Gale, 
7  Mass.  138;  Simpson  v.  Amnions,  1  Binn.  175;  Wilkins  v.  French,  2  Applet.  Ill; 
Upham  v.  Bradley,  5  Shepl.  423  ;  Erskine  v.  Townsend,  2  Mass.  493 ;  Hitchcock  v. 
Harrington,  6  Johns.  290,  295  ;  Punderson  v.  Brown,  1  Day,  93,  9G ;  Waters  v.  Stew- 
art, 1  Caines,  Cas.  47,  51,  66;  Clark  v.  Beach,  6  Conn.  142;  4  Kent,  Comm.  160; 
Ford  v.  Philpot,  5  H.  &  J.  312.  And  see  1  Smith's  Leading  Cases,  [298]  401,  note  by 
Hare  &  Wallace  ;  [Coffing  v.  Taylor,  16  111.  457.  One  mortgagor  or  his  assignee  of  a 
subsisting  mortgage,  cannot  maintain  a  real  action  against  the  mortgagee  or  his 
assignee.    Johnson  v.  Elliot,  6  Foster,  (N.  H.)  67.] 

After  breach  of  the  condition,  or  default  of  payment,  it  is  clear  that  by  the  common 
law,  the  mortgagee  may  enter,  or  may  eject  the  mortgagor  by  action.  It  is  equally 
clear  that,  where  it  is  expressly  agreed  that  until  default  the  mortgagor  may  remain  in 
possession  of  the  land,  the  mortgagee  cannot  enter  before  default ;  and  that  if  he 
should,  the  mortgagor  may  have  trespass  against  him.  Brown  v.  Cram,  1  N.  Hamp. 
169;  Hartshorne  v.  Hubbard,  2  X.  Hamp.  453;  Kunyan  v.  Mersereau,  11  Johns.  5:54. 
Whether,  in  the  absence  of  any  express  contract,  such  agreement  may  be  implied  from 
the  fact  alone  of  the  mortgagor  being  suffered  to  remain  in  possession  of  the  premises, 
or  from  that  fact  and  a  corresponding  usage  in  the  country,  is  not  perfectly  clear  upon 
the  authorities.  As  an  inference  of  law,  perhaps  the  Court  might  not  presume  it ;  but 
would  leave  the  jury  at  liberty  to  find  an  agreement  or  license,  if  properly  pleaded.  See 
Stowcll  i'.  Pike,  2  Greenl.  387  ;  Brown  v.  Cram,  supra ;  Hartshorne  v.  Hubbard,  supra. 
And  contra,  that  the  Court  will  presume  it.  Jackson  v.  Hopkins,  18  Johns.  488.  But 
see  1  Smith's  Leading  Cases,  297. 

But  in  the  absence  of  any  contract,  express  or  implied,  and  of  any  statute  provision, 
that  the  mortgagor  may  remain  in  possession,  the  mortgagee  may  enter,  or  eject  the 
mortgagor  by  action,  before  default  of  payment,  at  his  pleasure.  Newell  v.  Wright,  3 
Mass.  138  ;  Colman  v.  Packard,  16  Mass.  39  ;  Reed  v.  Davis,  4  Pick.  216  ;  Pettengill 
v.  Evans,  5  N.  Hamp.  54  ;  Doe  v.  Cunard,  2  Kerr,  193  ;  [Wales  v.  Mellen,  1  Gray,  512. 
And  after  such  entry,  he  may  maintain  trespass  against  the  mortgagor  who  shall  con- 


Title  XV.     Mortgage.     Ch.  II.  s.  2.  573 

obtaining  the  concurrence  of  the  mortgagor.  But  it  was  held  by 
Lord  Holt  that  the  mortgagor's  continuing  in  possession  would 
not  have  this  effect.  And  Chief  Justice  Eyre  said,  that  the 
covenant  to  suffer  the  mortgagor  to  continue  in  possession  gov- 
erned all  the  subsequent  assignments.  For  that  covenant  being 
that  the  mortgagor  should  hold  till  default  of  payment,  it  created 
a  tenancy  at  will  upon  all  the  mesne  assignments,  (a) 

(a)  Smartle  v.  Williams,  1  Salk.  245.    3  Lev.  387.     Comb.  249. 


tinue  in  possession  of  the  premises  thereafter.  Chellis  v.  Steanis,  2  Foster,  (N.  H.) 
312  ;  Furbush  v.  Goodwin,  9  lb.  321 ;  Page  v.  Kobinson,  10  Cush.  99  ;  Marsh  v.  Went- 
worth  ;  and  Marsh  v-.  Horton,  cited  in  10  Cush.  103 ;  Allen  v.  Bicknell,  36  Maine,  (1 
Heath,)  43G. 

In  a  mortgage  conditioned  that  the  mortgagor  shall  maintain  and  support  the  mort- 
gagee during  life,  and  give  him  a  decent  burial,  an  agreement  is  implied  that  the  mort- 
gagee shall  remain  in  possession  until  breach  of  the  condition.  Wales  v.  Mellen,  1 
Gray,  512  ;  Brown  v.  Leach,  35  Maine,  (5  Red.)  39;  Norton  v.  Webb,  lb.  218.  The 
mortgagee  out  of  possession  cannot  be  considered  as  the  proprietor  of  such  mortgaged 
estate.  Norwich  v.  Hubbard,  22  Conn.  587.  Nor  as  an  owner,  except  in  a  suit  or  pro- 
ceedings to  enforce  his  rights  as  mortgagee.    Great  Falls  Co.  v.  Worster,  15  N.  H.  412.] 

And  for  the  purpose  of  foreclosure,  the  mortgagee  may  have  an  action  against  any 
person  in  actual  possession  of  the  premises.  Keith  v.  Swan,  11  Mass.  216;  Penniman 
v.  Hollis,  13  Mass.  429  ;  Fales  v.  Gibbs,  5  Mason,  R.  462.  And  see  Jackson  v.  Dubois, 
4  Johns.  216;  Den  v.  Stockton,  7  Halst.  322.  [And  where  tenants  of  the  mortgagor 
and  the  mortgagee  himself  hold,  in  severalty,  portions  of  the  mortgaged  premises,  the 
mortgagee  may  recover  a  joint  judgment  for  the  rents  and  profits  of  the  whole  against 
them  all,  unless  they  separate  in  their  defence  by  a  disclaimer.  Ayres  v.  Nelson,  26 
Vt.  (3  Deane,)  13.] 

If  the  mortgagee  enters  under  a  claim  paramount  or  in  opposition  to  the  mortgage 
title,  he  cannot  set  up  the  mortgage  as  a  defence  to  an  action  of  trespass  brought 
against  him  by  the  mortgagor.    Merithew  v.  Sisson,  3  Kerr,  373.. 

In  several  of  the  United  States,  the  right  of  possession  of  the  premises  before  breach. 
is  regulated  by  statutes.  In  Massachusetts  and  in  Maine,  it  is  enacted  that  the  mort- 
gagee may  enter  before  breach,  unless  there  is  an  agreement  to  the  contrary.  So  it  is 
in  Vermont,  provided  the  agreement  is  contained  in  the  mortgage-deed.  In  South  Caro- 
lina, the  mortgagor,  if  he  is  in  actual  possession,  is  entitled  to  hold  against  the  mort- 
gagee, until  the  condition  is  broken.  In  Indiana,  the  Vermont  rule  is  reversed,  the 
mortgagee  not  being  entitled  to  the  possession  before  breach,  unless  it  is  expressly  so 
covenanted  in  the  deed.  [This  Indiana  statute  applies  to  mortgages  executed  before 
its  passage.  Morgan  v.  Woodward,  1  Carter,  446 ;  lb.  493.]  See  Mass.  Rev.  St.  1836, 
ch.  107,  §  9 ;  Maine  Rev.  St.  1840,  ch.  125,  §  2 ;  Verm.  Rev.  St.  1839,  ch.  35,  §  12  ; 
LL.  S.  Car.  Vol.  V.  p.  170;  Ind.  Rev.  St.  1843,  ch.  29,  §  30.  [In  Maryland,  unless 
there  is  an  agreement  to  the  contrary,  the  mortgagee  is  entitled  to  the  possession  of 
the  property  immediately  upon  the  execution  of  the  mortgage,  without  regard  to 
whether  there  has  been  a  breach  or  not.  Brown  v.  Stewart,  1  Md.  Ch.  Decis.  87.  If 
there  is  no  affirmative  covenant  that  the  mortgagor  shall  continue  in  possession,  with 
power  to  take  the  rents,  profits,  and  issues,  until  default  be  made,  he  will  not  be 
regarded  as  the  tenant  of  the  mortgagee.    McKim  v.  Mason,  3  Md.  Ch.  Decis.  186.] 


574  Title  XV.     Mortgage.     Ch.  II.  s.  3—5. 

3.  The  doctrine  that  the  mortgagor  is  tenant  at  will  to  the 
mortgagee,  has  been  discussed  in  some  modern  cases,  in  which 
it  is  shown  that  though  some  of  the  qualities  of  a  tenancy  at 
will  subsist  between  a  mortgagor  and  mortgagee,  yet  in  others 
they  differ.  For  it  is  now  established  that  a  mortgagee  may,  by 
ejectment,  without  six  months'  notice,  recover  against  the  mort- 
gagor or  his  tenant ;  in  which  respect  the  estate  of  a  mortgagor 
is  inferior  to  that  of  a  tenant  at  will,  (a) ' 

4.  A  -mortgagor  in  possession  cannot  commit  ivaste  ;2  if  he 
does,  the  Court  of  Chancery  will  grant  an  injunction  to  restrain 
him ;  because  it  is  neither  just  nor  equitable  that  a  mortgagor 
should  in  any  way  prejudice  or  diminish  the  value  of  the  estate 
mortgaged,  (b) 

5.  A  mortgagor  in  possession  cannot  make  a  lease  to  bind  the 
mortgagee  :  1.  Because,  being  only  quasi  tenant  at  will,  a  lease 
made  by  him  would  operate  as  a  determination  of  his  estate. 
2.  Because  the  mortgagor  can  do  no  act  tending  to  diminish  the 
security  of  the  mortgagee.  So  that  where  a  mortgagor  makes 
a  lease,  the  mortgagee  may  consider  the  lessee  as  a  trespasser  ; 
and  is  not  under  the  necessity  of  giving  him  six  months'  notice 
to  quit,  (c)  3 

(a)  Doug.  E.  279.     1  Term.  Eep.  378—382.     (Keech  v.  Hall,  1  Doug.  22.) 

(b)  3  Atk.  723.  1J.  &  W.  531.  8  Ves.  105.  5  Mad.  422.  (Brady  r.  Wa'dron,  2  Johns. 
Ch.  148.)  2  Story,  Eq.  Jur.  §  914.  Eden  on  Injunctions,  c.  9,  p.  118,  119.  4  Kent,  Coram. 
161.) 

(c)  Tit.  9.     (Ellithorp  v.  Dewing,  1  Chipm.  141.) 

1  With  respect  to  the  right  of  a  tenant  at  will  to  notice  to  quit,  see  ante.  tit.  9,  ch.  1, 
§  17,  note.  Whether  the  mortgagor  is  entitled  to  such  notice  from  the  mortgagee,  is  a 
point  upon  which  the  American  authorities  are  not  uniform.  In  New  York,  it  has  been 
held  that  he  is  entitled  to  notice.  Jackson  v.  Laughhead,  2  Johns.  75 ;  Jackson  v.  Hop- 
kins, 18  Johns.  487.  But  in  that  State,  by  a  subsequent  statute,  the  mortgagee's 
remedy  for  possession  is  restricted  to  an  action  upon  the  special  contract,  if  there  were 
any,  or  to  the  statute  remedy  for  foreclosure  and  sale,  after  default.  Rev.  St.  New 
York,  Vol.  II.  p.  408,  §  58,  3d  ed. ;  4  Kent,  Comm.  156,  n.  In  other  States,  no  such 
notice  is  necessary.  Groton  v.  Boxborough,  6  Mass.  50 ;  Rockwell  r.  Bradley,  2  Conn . 
1  ;  Wakeman  v.  Banks,  Ibid.  445 ;  Fuller  v.  Wadsworth,  2  Ired.  263.  See  also  9  S. 
&  R.  311,  per  Duncan,  J. ;  Doe  v.  Cunard,  2  Kerr,  193.  [See  also  Ing  v.  Cromwell, 
4  Md.  Ch.  Decis.  31.] 

If  the  land  is  in  possession  by  a  tenant  from  year  to  year  under  the  mortgagor,  he 
will  be  entitled  to  notice  to  quit.     Birch  v.  Wright,  7  T.  R.  3S3. 

2  Stowell  v.  Pike,  2  Greenl.  387  ;  Smith  v.  Goodwin,  lb.  176  ;  [Phcenix  v.  Clark,  2 
Halst.  Ch.  R.  447.] 

3  It  is  admitted,  that  if  an  authority  can  be  implied  in  the  mortgagor,  from  the  mort- 
gagee, to  permit  the  cultivation,  the  same  principle,  by  analogy,  will  justify  an  impli- 


Title  XV.     Mortffasre.     Ch.  II.  5.  6.  575 


■»"& 


*6.  An  ejectment  was  brought  for  a  warehouse  in  the  *  82 
city  of  London,  by  a  mortgagee,  against  a  lessee  under  a 
lease  in  writing,  for  seven  years ;  made  by  the  mortgagor,  after 
the  date  of  the  mortgage.  The  lease  was  at  rack-rent ;  the  mort- 
gagee had  no  notice  of  the  lease,  nor  the  lessee  of  the  mortgage. 
Lord  Mansfield  said,  the  question  for  the  Court  to  decide  was, 
whether  by  the  agreement  understood  between  mortgagors  and 
mortgagees — which  was,  that  the  latter  should  receive  interest, 
and  the  former  keep  possession — the  mortgagee  had  given  an  im- 
plied authority  to  let  from  year  to  year  at  a  rack-rent ;  or  whether 
he  might  not  treat  the  defendant  as  a  trespasser,  disseisor,  or 
wrongdoer.  No  case  had  been  cited  where  the  question  had  been 
agitated,  much  less  decided.  Where  the  lease  was  not  a  bene- 
ficial one,  it  was  for  the  interest  of  the  mortgagee  to  continue  the 
tenant ;  and  where  it  was,  the  tenant  might  put  himself  in  the 
place  of  the  mortgagor,  and  either  redeem  himself,  or  get  a  friend 
to  do  it.  The  idea  that  the  question  might  be  more  proper  for  a 
court  of  equity,  went  upon  a  mistake.  It  emphatically  belonged 
to  a  court  of  law,  in  opposition  to  a  court  of  equity  :  for  a  lessee 

cation  that  he  had  authority  to  demise.  It  is  also  admitted,  that  the  mortgagee  would 
he  hound  by  the  lease  of  the  mortgagor,  if  he  did  any  act  amounting  to  an  express  or 
implied  assent  to  it.  1  Pow.  Mort.  163.  But  that  the  mortgagee  may  treat  the  lessee 
of  the  mortgagor  as  a  trespasser,  is  a  position  which  Chancellor  Kent  regards  as  un- 
sound. He  observes  that  "the  justice  and  good  sense  of  the  case  is,  that  the  assignee 
of  the  mortgagor  is  no  more  a  trespasser  than  the  mortgagor  himself;  and  the  mort- 
gagor lias  a  right  to  lease,  sell,  and  in  every  respect  to  deal  with  the  mortgaged  premises 
as  owner,  so  long  as  he  is  permitted  to  remain  in  possession,  and  so  long  as  it  is  under- 
stood and  held,  that  every  person  taking  under  him  takes  subject  to  all  the  rights  of 
the  mortgagee,  unimpaired  and  unaffected.  Nor  is  he  liable  for  the  rents ;  and  the 
mortgagee  must  recover  the  possession  by  regular  entry,  by  suit,  before  he  can  treat 
the  mortgagor,  or  the  person  holding  under  him,  as  a  trespasser.  This  is  now  the 
better,  and  the  more  intelligible  American  doctrine."  4  Kent,  Comm.  157.  And  more 
recently,  in  England,  it  was  maintained  by  Lord  Denman,  that  a  mortgagee  may  so 
bind  himself,  by  his  own  conduct,  as  to  be  precluded  from  treating  the  mortgagor's 
lessee  as  a  trespasser;  and  he  intimated  his  opinion,  that  a  jury  might  be  warranted  in 
inferring  a  recognition  of  the  tenant's  right  to  hold,  from  the  mere  circumstance  of  the 
mortgagee's  knowingly  permitting  the  mortgagor  to  continue  the  apparent  owner  of 
the  premises,  as  before  the  mortgage,  and  to  lease  them,  exactly  as  if  his  property  in 
them  continued.  See  Evans  v.  Elliot,  9  Ad.  &  El.  342.  In  Doe  v.  Hales.  7  Bing.  322, 
it  was  held,  that  after  demand  of  rent  in  arrear,  by  the  mortgagee's  attorney,  the 
tenant  of  the  mortgagor  could  not  be  treated  as  a  trespasser.  And  in  Evans  v.  Elliot, 
supra,  it  was  held  by  all  the  Judges,  that  the  mortgagee  could  not,  by  a  mere  notice  of 
the  mortgage  and  a  demand  of  rent,  entitle  himself  to  distrain  upon  the  tenant  of  the 
mortgagor,  without  attornment,  the  lease  having  been  made  subsequent  to  the  mort- 
gage, and  by  the  mortgagor  then  in  possession. 


576  Title  XV.     Mortgage.     Ch.  II.  s.  6. 


'&  ^o 


at  a  rack-rent  was  a  purchaser  for  a  valuable  consideration  ;  and 
in  every  case  between  purchasers  for  a  valuable  consideration,  a 
court  of  equity  must  follow,  not  lead,  the  law.  On  full  consider- 
ation the  Court  was  clearly  of  opinion  that  there  was  no  inference 
of  fraud  or  consent  against  the  mortgagee,  to  prevent  him 
from  considering  the  lessee  as  a  wrongdoer.  It  was  rightly 
admitted,  that  if  the  mortgagee  had  encouraged  the  tenant  to  lay 
out  money,  he  could  not  maintain  this  action :  but  here  the 
question  turned  upon  the  agreement  between  the  mortgagor  and 
mortgagee.  When  the  mortgagor  was  left  in  possession,  the 
true  inference  to  be  drawn  was  an  agreement  that  he  should 
possess  the  premises  at  will,  in  the  strictest  sense,  and  therefore 
no  notice  was  ever  given  him  to  quit;  and  he  was  not  even 
entitled  to  reap  the  crop,  as  other  tenants  at  will  were,  because 
all  was  liable  to  the  debt,  on  payment  of  which  the  mortgagee's 
title  ceased.  The  mortgagor  had  no  power,  expressed  or  implied, 
to  let  leases,  not  subject  to  every  circumstance  of  the  mortgage. 
If  by  implication  the  mortgagor  had  such  a  power,  it  must  go  to 
a  great  extent — to  leases  where  a  fine  was  taken  on  a  renewal 
for  lives.  The  tenant  stood  exactly  in  the  situation  of  the  mort- 
gagor.   The  possession  of  the  mortgagor  could  not  be  considered 

as  holding  out  a  false  appearance  :  it  did  not  induce  a 
83  *       belief  that  *  there  was  no  mortgage,  for  it  was  the  nature 

of  the  transaction  that  the  mortgagor  should  continue  in 
possession.  Whoever  wanted  to  be  secure  when  he  took  a  lease, 
should  inquire  after  and  examine  the  title-deeds.  In  practice, 
indeed,  especially  in  great  estates,  that  was  not  often  done, 
because  the  tenant  relied  on  the  honor  of  his  landlord :  but 
whenever  one  of  two  innocent  persons  must  be  a  loser,  the  rule 
was,  qui  prior  in  tempore  potior  est  in  jure.  If  one  must  suffer, 
it  was  he  who  had  not  used  due  diligence  in  looking  into  the 
title.     Judgment  was  given  to  the  plaintiff,  (a)  1 

(«)  Keech  v.  Hall,  1  Doug.  21. 

1  In  Evans  v.  Elliot,  9  Ad.  &  El.  342,  Lord  Denman  said, — "  I  am  by  no  means 
prepared  to  admit  that  a  jury  would  not  be  warranted  in  inferring  a  recognition  of  the 
tenant's  right  to  hold  from  the  mere  circumstance  of  the  mortgagee's  knowingly  per- 
mitting the  mortgagor  to  continue  the  apparent  owner  of  the  premises,  as  before  the 
mortgage,  and  to  lease  them  out,  exactly  as  if  his  property  in  them  continued. 

"The  well-known  case  of  Keech,  lessee  of  Warne,  v.  Hall,  1  Dougl.  21,  is  generally 
considered  as  an  authority  the  other  way ;  but  Lord  Mansfield  was  not  there  laying 


Title  XV.     Mortgage.     Ch.  II.  5.  7—10.  577 

7.  In  a  subsequent  case  it  was  resolved  that  an  ejectment 
might  be  brought  by  the  assignee  of  a  mortgagee,  without  giving 
notice  to  quit,  against  one  who  was  let  into  possession  as  tenant 
from  year  to  year,  by  the  mortgagor,  after  the  mortgage  made  to 
the  original  mortgagee,  but  before  assignment  of  it  to  the  plain- 
tiff's lessor,  (a) 

8.  It  should,  however,  be  observed  that  a  lease  of  this  land 
is  good  against  the  mortgagor  and  his  heirs,  and  also  against 
all  strangers  ;  and  will  entitle  the  lessee  to  redeem  the  mortgage. 

9.  Where  the  money  borrowed  on  a  mortgage  is  not  paid  on 
the  day  specified  in  the  deed,  the  mortgage  is  forfeited  at  law ; 
and  the  estate  of  the  mortgagor  becomes  an  equity  of  redemption, 
of  which  an  account  will  be  given  in  the  next  chapter. 

10.  It  has  been  stated  that  upon  the  execution  of  a  mortgage 
deed,  the  mortgagee  becomes  seised  of  the  legal  estate ;  and  may 
enter  into  possession,  unless  prevented  by  the  express  terms  of 
the  contract.  But  in  equity,  the  lands  mortgaged  are  considered 
as  a  pledge  only  in  his  hands  for  securing  the  repayment  of  the 
money  borrowed.  And  as  long  as  the  right  of  redemption  exists, 
the  mortgagee  is  considered  merely  as  a  trustee  for  the  mortgagor ; 
so  that  none  of  his  charges  or  incumbrances  attach  on  the  es- 
tate, (b) l 

{a)  Thunder  v.  Belcher,  3  East.  449.  (b)  Ante,  c.  1,  §  10. 

down  the  law  upon  the  subject  so  much  as  explaining  his  own  view  of  the  manner  in 
which  mortgagor  and  mortgagee  commonly  regard  one  another  in  fact.  I  must  add 
that  some  misconception  may  have  arisen  on  this  subject,  from  the  care  the  Courts  have 
employed  in  correcting  an  acknowledged  error  of  the  same  great  Judge,  the  error  of 
supposing  that  the  right  to  recover  in  ejectment  could  depend  on  any  thing  but  the  legal 
right  of  possession.  This  most  frequently  follows  the  legal  estate  ;  though  Lord  Mans- 
field was  disposed  in  some  cases  to  transfer  it  to  him  in  whom  no  more  than  an  equitable 
title  was  vested.  A  strong  assertion  of  the  right  of  the  mortgagee  in  such  a  case, 
against  the  mortgagor,  may  have  led  to  the  notion  that,  as  against  the  former,  not  only 
the  latter,  but  all  claiming  under  him,  must  be  wrongdoers,  without  adverting  to  the 
possibility  of  the  right  of  possession  being  recognized  in  another  by  the  person  enjoy- 
ing the  legal  estate."  See  1  Smith's  Leading  Cases,  [293,]  with  Hare  &  Wallace's 
notes,  where  all  the  cases  on  this  point  arc  reviewed. 

1  [Where  one  or  more  notes  are  given,  secured  by  a  mortgage  of  the  maker,  the 
mortgagee  in  possession  holds  the  estate  charged  with  the  mortgage  debt,  in  trust  for 
the  mortgagor.  And  the  assignee  in  possession  of  the  mortgage  with  one  of  the  notes 
only,  bolds  the  estate  in  trust  for  the  payment  of  all  the  notes  it  was  intended  to  secure  ; 
and  the  mortgage  is  in  itself  notice  to  the  assignee  of  the  trust  chargeable  upon  it,  not- 
withstanding he  may  not  know  to  whom  the  other  notes  have  been  assigned.  Moore  v. 
Ware,  38  Maine,  (3  Heath,)  496 ;  Johnson  v.  Candagc,  31  Maine,  (1  Red.)  28  ;  Keycs 

vol.  i.  49 


578  Title  XV.     Mortgage.     Oh.  II.  s.  11—12. 

11.  Where  the  interest  is  not  paid,  the  mortgagee  becomes 
entitled  to  the  possession  of  the  lands,  and  may  bring  an 
84  *      ejectment  *  for  the  recovery  of  them,  (a)  f 

12.  The  mortgagee  may,  upon  non-payment  of  the  inter- 
est, give  notice  of  the  mortgage  to  the  tenants,  or  occupiers  of  the 
lands  mortgaged  ;  and  he  thereby  acquires  a  right  to  the  rents  then 
in  arrear,  as  well  as  to  what  accrues  after.1 

(a)  Doe  v.  Roe,  4  Taunt.  887.  4  Ves.  106.  7  lb.  489.  3  Ves.  &  B.  15.  13  lb.  560. 
9  Ves.  36.  S.  C.  Coop.  27.  3  Mad.  433.  1  Bro.  C.  C.  514.  Also  Dixon  v.  Wigram,  2  Cr, 
&  J.  613. 

v.  Wood,  21  Vt.  (G  Washb.)  331  ;  Waterman  v.  Hunt,  2  E.  Isl.  29S  ;  State  Bank  v- 
Tweedy,  8  Blackf.  447 ;  McCorraick  v.  Dig-by,  8  Blackf.  99.] 

[t  But  by  the  Statute  7  Geo.  2,  c.  20.  it  is  enacted  that  where  an  ejectment  is 
brought  by  a  mortgagee,  and  no  suit  is  then  depending  in  equity  respecting  the  fore- 
closure or  redemption  of  the  mortgage,  the  mortgagor's  tendering  the  principal,  interest. 
and  costs  in  Court,  shall  be  deemed  a  full  satisfaction  ;  and  the  Court  may  compel  the 
mortgagee  to  reconvey  the  premises.] 

1  Formerly,  in  order  to  create  a  privity  of  estate  between  the  purchaser  of  the  rever- 
sion and  the  tenant  of  the  grantor  or  lessee,  so  as  to  enable  the  former  to  maintain  an 
action  of  debt  for  rent,  the  consent  of  the  tenant  to  the  alienation  was  necessary;  and 
this  consent  was  called  attornment.  For  by  the  feudal  law,  neither  the  lord  nor  the  ten- 
ant could  alien  their  interests  in  the  land  to  a  stranger,  without  the  other's  consent. 
The  necessity  of  such  attornment  was  partly  avoided  by  conveyances  made  under  the 
Statute  of  Uses ;  and  it  was  at  last  finally  removed  in  England  by  the  Statutes  of 
4  &  5  Ann.  c.  1G,  and  11  Geo.  2.  c.  19.  The  former  of  these  statutes  seems  to  have 
been  tacitly  adopted  in  the  United  States,  as  a  rule  in  beneficial  amendment  of  the 
common  law.  See  4  Kent,  Comra.  490,  491  ;  Burden  v.  Thayer,  3  Met.  78,  per  Shaw, 
C.  J. ;  Commonwealth  v.  Leach,  1  Mass.  61,  per  Dana,  C.  J. ;  Farley  r.  Thompson. 
15  Mass.  25,  26,  per  Wilde,  J.  And  notice  to  the  tenant  is  now  deemed  sufficient  to 
entitle  the  grantee  of  the  reversion  to  the  subsequently  accruing  rent.  For  the  rent  is 
incident  to  the  reversion,  and  constitutes,  in  case  of  a  mortgage,  part  of  the  fund 
pledged  for  security  of  the  debt.  If,  therefore,  the  mortgagee  does  not  choose  to  enter, 
and  receive  the  rents,  the  tenant  is  justified  in  making  payments  to  his  immediate  les- 
sor; but  if  the  mortgagee  elects  to  take  the  rents,  he  may  give  notice  to  the  tenant  of 
his  election  and  title,  and  thereupon  the  tenant  is  thenceforth  bound  to  pay  the  rent  to 
him  only.     Ibid.     And  see  Birch  v.  Wright,  1  T.  R.  384,  per  Buller,  J. 

But  where  the  mortgagor,  being  suffered  to  remain  in  possession  of  the  land,  makes 
a  lease  subsequent  to  the  mortgage,  it  has  been  held  that  the  mortgagee  cannot,  by  mere 
notice  to  the  lessee  that  the  premises  are  mortgaged  to  him,  and  that  default  has  been 
made  in  the  payment,  with  a  demand  of  rent  from  the  lessee,  cause  the  lessee  to 
hold  of  him  as  his  tenant,  and  distrain  for  the  rent ;  unless  the  tenant  attorned.  Evans 
v.  Elliot,  9  Ad.  &  El.  342.  And  see  Alchorne  v.  Gomme,  2  Bing.  62;  McKircher  v. 
Hawley,  16  Johns.  288:  Jones  v.  Clark,  20  Johns.  51  ;  Sanders  v.  Vansickle,  3  Halst. 
313,  316.  The  cases  of  Pope  v.  Biggs,  9  B.  &  C  245,  and  Waddilove  v.  Barnett, 
2  Bing.  N.  C.  538,  seem  contra;  but  in  the  former,  which  was  debt  for  use  and  occupa- 
tion, brought  by  the  assignees  of  a  bankrupt  mortgagor  against  his  own  tenant,  under 
a  lease  made  after  the  mortgage,  the  question  was,  whether  the  defendant  was  protected 


Title  XV.     Mortgage.     Ch.  II.  s.  13.  579 

13.  One  Harrison,  being  seised  in  fee,  demised  certain  lands. 
in  1772,  to  Moss,  the  plaintiff,  for  twenty  years,  reserving  rent ; 
and  afterwards  mortgaged  the  same  lands  to  the  defendant,  Galli- 
more,  in  fee.  Moss  continued  in  possession  from  the  date  of  his 
lease  ;  and  paid  his  rent  regularly  to  the  mortgagor,  all  but  £28, 
which  was  due  on  or  before  November,  1778,  when  the  mort- 
gagor became  a  bankrupt,  being  at  the  time  indebted  to  the  mort- 
gagee in  more  than  that  sum,  for  interest  on  the  mortgage.  On 
the  3d  of  January,  1779,  the  mortgagee  gave  notice  to  Moss,  the 
tenant,  of  the  mortgage,  and  demanded  the  rent  then  due,  and 
afterwards  entered  and  distrained  for  rent.  The  question  was, 
whether  the  distress  could  be  justified. 

Lord  Mansfield.  "  I  think  this  case,  in  its  consequences,  very 
material.  It  is  the  case  of  lands  let  for  years,  and  afterwards 
mortgaged ;  and  considerable  doubts,  in  such  cases,  have  arisen 
in  respect  to  the  mortgagee,  when  The  tenant  colludes  with  the 
mortgagor ;  for  the  lease  protecting  the  possession  of  such  a 
tenant,  he  cannot  be  turned  out  by  the  mortgagee.  Of  late  years, 
the  courts  have  gone  so  far  as  to  permit  the  mortgagee  to  proceed 
by  ejectment,  if  he  has  given  notice  to  the  tenant  that  he  does 
not  intend  to  disturb  the  possession,  but  only  requires  the  rent  to 
be  paid  him,  and  not  to  the  mortgagor.     This,  however,  is  en- 


by  payments  actually  made  to  the  mortgagee  after  notice  and  demand  ;  the  Court  de- 
ciding that  he  was  protected  ;  and  in  the  latter  of  these  cases,  which  was  assumpsit  for 
use  and  occupation,  brought  by  the  mortgagor  against  his  tenant,  under  a  lease  made 
after  the  mortgage,  the  cpiestion  was,  whether,  under  the  new  rules,  notice  by  the  mort- 
gagee to  pay  the  rent  subsequently  accruing  to  him  only,  was  admissible  under  the 
general  issue,  and  sufficient  to  bar  the  action  ;  and  the  Court  held  the  affirmative.  In 
both  these  cases,  the  defence  implies  an  attornment.  Whether  the  prior  registration  of 
the  mortgage,  under  our  registration  laws,  operating  as  previous  notice  to  the  lessee,  of 
the  mortgagor's  title,  would  affect  the  principle  of  the  decision  in  Evans  v.  Elliot,  in 
its  application  here,  qucere. 

If  the  tenant,  under  a  lease  made  posterior  to  the  mortgage,  has  become  tenant  to 
the  mortgagee,  by  attornment  and  the  payment  of  rent  to  him ;  this  will  constitute  a 
good  defence  to  an  action  of  ejectment,  brought  against  him  by  the  mortgagor.  Do^ 
v.  Simpson,  3  Kerr,  194. 

As  to  the  rent  which  was  already  due  and  in  arrear  afthe  time  of  the  mortgage  ox  grant 
of  the  reversion,  it  is  well  settled  that  it  does  not  pass  to  the  mortgagee  or  grantee 
See  Burden  v.  Thayer,  supra  ;  Birch  v.  "Wright,  supra;  Fitchburg  Man.  Co.  v.  Melvin, 
15  Mass.  268;  Demarest  v.  Willard,  8  Cow.  206.  See  also  1  Smith's  Leading  Cases, 
425,  2d  Am.  ed.  with  Hare  &  Wallace's  notes,  where  the  American  authorities  arc  col- 
lected and  reviewed. 


580  Title  XV.     Mortgage.     Ch.   II.  s.  13—14. 

tangled  with  difficulties.  The  question  here  is,  whether  the 
mortgagee  was,  or  was  not,  entitled  to  the  rent  in  arrear.  Before 
the  statute  of  Queen  Anne,  attornment  was  necessary,  on  the 
principle  of  notice  to  the  tenant ;  but  when  it  took  place,  it  cer- 
tainly had  relation  back  to  the  grant ;  and,  like  other  relative  acts, 
they  were  to  be  taken  together.  Thus,  livery  of  seisin, 
85  *  though  made  afterwards,  relates  to  the  time  of  the  *  feoff- 
ment. Since  the  statute,  the  conveyance  is  complete 
without  attornment :  but  there  is  a  provision,  that  the  tenant 
shall  not  be  prejudiced  by  any  act  done  by  him  as  holding  under 
the  grantor,  till  he  has  had  notice  of  the  deed.  Therefore  the 
payment  of  rent  before  such  notice  is  good.  With  this  protec- 
tion he  is  to  be  considered,  by  force  of  the  statute,  as  having 
attorned  at  the  time  of  the  execution  of  the  grant ;  and  here  the 
tenant  has  suffered  no  injury.  No  rent  has  been  demanded,  which 
was  paid  before  he  knew  of  fhe  mortgage.  He  had  the  reflt  in 
question  still  in  his  hands,  and  was  bound  to  pay  it  according  to 
the  legal  title.  But  having  notice  from  the  assignees,  and  also 
from  the  mortgagee,  he  dares  to  prefer  the  former,  or  keeps  both 
parties  at  arms'  length.  In  the  case  of  executions,  it  is  uniformly 
held,  that  if  you  act  after  notice,  you  do  it  at  your  peril.  He  did 
not  offer  to  pay  one  of  the  parties  on  receiving  the  indemnity. 
As  between  the  assignees  and  the  mortgagee,  let  us  see  who  is 
entitled  to  rent.  The  assignees  stand  exactly  in  the  case  of  the 
bankrupt.  Now,  a  mortgagor  is  not  properly  tenant-  at  will  to 
the  mortgagee,  for  he  is  not  to  pay  him  rent.  He  is  only  quodam 
modo.  Nothing  is  more  apt  to  confound  than  a  simile.  When 
the  court  or  counsel  call  a  mortgagor  a  tenant  at  will,  it  is  barely 
a  comparison.  He  is  like  a  tenant  at  will.  The  mortgagor 
receives  the  rent  by  a  tacit  agreement  with  the  mortgagee  :  but 
the  mortgagee  may  put  an  end  to  this  agreement  when  he  pleases. 
He  has  the  legal  title  to  the  rent ;  and  fhe  tenant,  in  the  present 
case,  cannot  be  damnified,  for  the  mortgagor  can  never  oblige 
him  to  pay  over  again  the  rent  which  has  been  levied  by  distress. 
T  therefore  think  the  distress  well  justified ;  and  I  consider  this 
remedy  as  a  very  proper  additional  advantage  to  mortgagees,  to 
prevent  collusion  between  the  tenant  and  the  mortgagor."  (a) 
14.  It  is  a  principle  of  law,  that  an  assignee  of  a  lease  is  sub- 

(a)  Moss  v.  Gallimore,  Doug.  279.     1  Terra  E.  384. 


Title  XV.     Mortgage.     Ch.   II.   s.  14.  581 

ject  to  the  performance  of  all  the  covenants  contained  in  such 
lease.  So  that  where  a  lease  was  assigned  by  way  of  mortgage, 
the  mortgagee  would  become  liable  to  the  covenants  in  the  lease, 
unless  a  distinction  were  made  between  an  absolute  assignment 
and  one  made  by  way  of  mortgage.  Upon  this  ground  it  was 
determined  by  the  Court  of  King's  Bench  in  1783,  that  if  a  lease- 
hold was  assigned  as  a  security  only  for  the  repayment  of  a  sum  of 
money,  the  lessor  could  not  sue  the  mortgagee,  as  assignee 
*  of  all  the  mortgagor's  estate,  even  after  the  mortgage  was  *  86 
forfeited;  unless  the  mortgagee  had  entered  into  possession. 
But  this  doctrine  has  been  altered ;  and  it  is  now  settled  that 
when  a  party  takes  an  assignment  of  a  lease,  by  way  of  mort- 
gage, the  whole  interest  passes  to  him ;  and  he  becomes  liable  on 
the  covenant  for  payment  of  rent,  though  he  never  occupied,  or 
became  possessed  in  fact,  (a)  f  ' 

(«)  Eaton  v.  Jaques,  1  Doug.  457.    Williams  v.  Bosanquet,  1  Brod.  &  Bing.  238. 


[t  To  prevent  the  consequences  of  the  mortgagee's  liability  as  assignee,  it  is  usual  in 
practice  to  make  mortgages  of  leaseholds  by  demise,  and  not  by  assignment,  particu- 
larly if  the  property  consist  of  buildings.     Note  by  Mr.  Cruise.] 

i  It  is  well  settled,  as  a  general  doctrine,  that  a  mere  legal  ownership  docs  nor 
make  the  party  liable,  in  cases  like  those  supposed  in  the  text,  without  some  evi- 
dence of  his  possession  also,  or  of  his  actual  agency.  This  principle  is  clearly 
recognized  in  the  law  of  shipping  ;  the  rule  being  settled  that  the  mortgagee  of  a  ship 
does  not  incur  the  liabilities  of  an  owner,  until  he  takes  possession,  or  actively  inter- 
feres in  the  employment  of  the  vessel.  Chinnery  v.  Blackburne,  1  H.  Bl.  117,  n. 
Jackson  v.  Vernon,  Ibid.  114;  Briggs  v.  Wilkinson,  7  B.  &  C.30;  Westerdell  v.  Dale. 
7  T.  R.  306,  per  Lord  Kenyon;  Brooks  v.  Bondsey,  17  Pick.  441 ;  Colson  v.  Bonsey,  6 
Grcenl.  474;  Winsor  v.  Cutts,  7  Greenl.  261  ;  Mclntyre  v.  Scott,  8  Johns.  159.  In 
Young  v.  Brander,  8  East,  10,  the  owner  had  transferred  his  interest,  but  not  in  legal 
form;  yet  the  mere  legal  title,  still  remaining  in  him,  was  held  not  sufficient  to  render 
him  liable,  as  owner,  for  repairs  ordered  by  the  captain. 

It  was  the  same  general  principle  of  equity  and  good  sense,  that  was  administered 
by  Lord  Mansfield,  in  the  case  of  chattels  real,  in  Eaton  v.  Jaques*.  And  in  the  case 
of  freehold  estates,  we  have  already  seen  that,  as  to  all  the  world  but  the  mortgagee, 
the  mortgagor  in  possession  is  to  be  regarded  as  the  sole  owner  of  the  land.  See  ante. 
§  1,  note.  The  mortgagee  is  not  treated  as  such,  until  after  he  has  taken  possession. 
Lowell  v.  Shaw,  3  Shepl.  242. 

The  assignee  in  mortgage  of  a  chattel  real,  not  in  actual  possession,  is  considered 
as  possessed,  only  as  against  the  assignor,  and  this  by  way  of  estoppel.  He  is  not  com- 
pelled to  take  possession;  he  may  intend  to  acquire  nothing  more  than  an  equitable 
Lien,  or  a  title  by  estoppel,  and  against  purchasers  with  notice.  His  legal  title  in  that 
case  depends  on  a  legal  fiction  ;  and  fictions  of  law  serve  to  effectuate  the  actual  intent 
of  the  parties,  but  never  to  defeat  it.  Moreover,  it  is  conceded,  that  if  the  mortgagee 
'were  to  take  an  assignment  of  all  the  term  except  one  day,  he  would  not  bo  liable  on 

49* 


582  Title  XV.     Mortgage.     Ch.  II.  s.  15—17. 

15.  Although  a  mortgagee  in  fee  in  possession  has  a  right  at 
law  to  commit  any  kind  of  ivaste,  because  he  is  there  considered 
as  the  absolute  owner  of  the  inheritance  ;  yet  he  will  be  restrained 
in  equity;  and  the  Court  of  Chancery  will  also  decree  an  account 
to  be  taken  of  the  trees  cut  down  ;  and  direct  the  produce  to  be 
applied,  first  in  payment  of  the  interest  due  on  the  mortgage,  and 
then  in  reducing  the  principal,  (a) 

16.  If,  however,  the  security  is  defective,  the  Court  of  Chancery 
will  not  restrain  a  mortgagee  from  his  legal  privileges.  But  the 
money  arising  from  the  sale  of  timber  must  be  applied  towards 
payment  of  the  mortgage,  (b) 

17.  A  mortgagee  of  a  copyhold  may  pull  down  ruinous  houses, 
and  build  better  ones,  to  prevent  a  forfeiture.     For  the  lord  has  a 

(a)  2  Vern.  392.     Salmon  v.  Claggett,  3  Bland,  126. 

(b)  Sel.  Ca.  in  Chan.  30. 


the  covenants  of  the  mortgagor,  in  the  original  lease  ;  which  shows  that  even  the  claim 
of  his  liability  stands  on  ground  purely  technical,  and  so  it  was  admitted  in  Williams 
v.  Bosanquet,  1  Brod.  &  Bing.  238. 

But  it  is  clear  that  before  entry  the  assignee  cannot  bring  trespass  ;  Cook  v.  Harris, 
1  Lord  Kaym.  367  ;  nor  can  the  assignee  of  a  lessee  take  by  release,  before  entry,  to 
enlarge  his  estate.  Co.  Lit.  46,  b.  Neither  has  a  mortgagee,  out  of  possession,  any 
interest  which  can  be  sold  on  execution ;  Jackson  v.  Willard,  4  Johns.  41  ;  but  the 
equity  of  redemption,  remaining  in  the  mortgagor,  is  real  estate,  which  may  be  ex- 
tended or  sold  for  his  debts.  White  v.  Bond,  16  Mass.  400;  Waters  v.  Stewart,  1 
Caincs,  Cas.  47  ;  dishing  v.  Hurd,  4  Pick.  253.  Nor  does  the  mortgagee  derive  any 
profit  from  the  land,  until  actual  entry,  or  other  assertion  of  exclusive  ownership  ;  pre- 
vious to  which  the  mortgagor  takes  the  rents  and  profits,  without  liability  to  account. 
Ante,  §  1,  note;  Fitchburg  Man.  Co.  v.  Melven,  15  Mass.  268;  Gibson  v.  Farley,  16 
Mass.  280;  Boston  Bank  v.  Keed,  8  Pick.  459. 

On  these  grounds,  it  has  been  held  here,  as  the  better  opinion,  that  the  mortgagee 
of  a  term  of  years,  who  has  not  taken  possession,  has  not  all  the  legal  right,  title,  and 
interest  of  the  mortgagor,  and  therefore  is  not  to  be  treated,  as  a  complete  assignee,  so 
as  to  be  chargeable  on  the  real  covenants  of  the  assignor ;  and  accordingly  Courts  have 
held  that  Eaton  v.  Jaques  was  rightly  decided.  Astor  v.  Miller,  2  Paige,  68  ;  Astor  v. 
Hoyt,  5  Wend.  603 ;  Walton  v.  Cronly,  14  Wend.  63.  In  New  Hampshire,  it  lias  been 
held  otherwise.  McMurphy  v.  Minot,  4  N.  Hamp.  251.  And  in  Virginia  also,  but 
partly  on  other  grounds.  Farmer's  Bank  r.  Mutual  Ins.  Soc.,  4  Leigh,  69.  The  stu- 
dent will  find  a  brief  but  searching  review  of  Williams  v.  Bosanquet,  in  Mr.  Coven- 
try's note  to  1  Pow.  on  Mortg.  182,  a,  note  (M)  at  p.  185. 

[The  question  whether  the  mortgagee  of  a  term  of  years,  who  has  not  taken  posses- 
sion, is  liable  upon  the  real  covenants  of  the  assignor,  is  discussed  at  considerable 
length,  and  the  English  and  American  cases  are  reviewed  by  Mr.  Justice  Daniel 
in  Calvert  et  al.  v.  Bradley  et  al.  16  How.  U.  S.  pp.  593,  596,  but  no  decision  is 
made.  The  cases  of  S telle  v.  Carroll,  1-2  Pet.  201  ;  and  Van  Ness  v.  Hyatt  et  al.  13. 
Pet.  294,  are  commented  upon  and  limited.] 


Title  XV.     Mortgage.      Ch.  II.  s.  17—19.  583 

right  to  say  that  the  tenant  shall  not  let  the  houses  fall,  and  may 
seize  if  he  does,  (a) 

18.  A  mortgagee  in  possession  cannot  make  a  lease  of  the  lands, 
so  as  to  bind  the  mortgagor,  without  an  absolute  necessity.  For 
by  that  means  the  estate  might  be  greatly  injured,  by  the  mort- 
gagee's granting  improper  or  beneficial  leases.1 

19.  The  plaintiff  having  mortgaged  a  house  in  London  to  Clay, 
the  defendant,  tendered  him  the  principal  sum  due  and  interest, 
which  he  refusing,  exhibited  his  bill  to  have  a  reconveyance. 
The  defendant  answered,  that  he  had  made  a  lease  of  the  house 
for  five  years,  reserving  so  much  yearly  rent,  with  a  covenant, 
that  after  the  expiration  of  the  five  years,  the  lessee  should  hold 
it  for  four  years  longer ;  and  that  if  the  plaintiff,  the  mortgagor, 
would  grant  such  lease,  the  defendant  would  reconvey.  The 
Master  of  the  Rolls  decreed  for  the  defendant.  On  an  appeal  to 
Lord  Macclesfield,  it  was  insisted  for  the  plaintiff,  that  a  mort- 
gagee could  not  make  a  lease  of  a  house  or  lands  in 

*  mortgage,  unless  there  was  an  absolute  necessity  for  it,       *  87 
which  did  not  appear  in  this  case.     The  Court,  being  of 
that  opinion,  reversed  the  decree. (b) f 

(a)  Hardy  v.  Eeeves,  4  Ves.  480. 

(£)  Hungerford  v.  Clay,  9  Mod.  1.     Costigan  v.  Hastier,  3  Sch.  &  Lef.  160. 


1  [The  deed  of  a  mortgagee  in  possession  of  the  mortgaged  premises,  will  convey  his 
rights  under  the  mortgage.  Lamprey  v.  Nudd,  9  Foster,  (N.  H.)  299,  and  will  be  good 
against  all  but  the  mortgagor  and  those  who  stand  in  his  place,  and  will  be  good  against 
them  until  redemption.  Hutchins  v.  Carleton,  19  N.  H.  487.  But  see  Furbush  v.  Good- 
win, 5  Foster,  425.  A  deed  from  the  mortgagee  to  a  third  person  of  part  of  the  land  in- 
cluded in  a  mortgage,  does  not  discharge  that  portion  of  the  land  from  the  mortgage  as 
regards  the  mortgagor.  Wyman  v.  Hooper,  2  Gray,  141 .  Where  a  prior  mortgagee  lias 
taken  possession  for  condition  broken,  and  put  in  a  tenant,  a  writ  of  entry  will  not  lie  by 
a  second  mortgagee  against  such  tenant.  Batcheller  v.  Pratt,  10  Cush.  185.  If  the 
mortgagee  assigns  one  of  several  notes  secured  by  a  mortgage,  such  assignment  is  pro 
tanto,  an  assignment  of  the  mortgage,  and  the  assignee  thereof,  the  other  notes  being 
paid,  may  have  his  action  for  foreclosure.  Page  v.  Fierce,  6  lb.  317.  Sec  also  Downer 
v.  Button,  lb.  338;  Fisher  v.  Otis,  3  Chand.  (Wise.)  83;  Martineau  v.  McCollum,  4 
•  lb.  153;  Whittemore  v,  Gibbs,  4  Foster,  (N.  H.)  484;  Graham  v.  Newman,  21  Ala.  497; 
22  lb.  743.  But  sec  Warren  v.  Homestead,  33  Maine,  (3  Red.)  250.  If  a  mort- 
gage, made  to  secure  the  performance  of  a  bond,  be  assigned,  the  assignee  can  maintain 
no  action  upon  it,  unless  he  has  also  some  interest  in  the  bond,  for  he  can  have  no  con- 
ditional judgment.     Webb  v.  Flanders,  32  Maine,  (2  Red.)  175.] 

t  [To  the  creation  of  a  valid  lease  of  an  estate  in  mortgage,  the  concurrence  of  the 
mortgagee  and  mortgagor  is  essential.  The  mortgagee,  having  the  legal  estate,  should 
demise,  and  the  mortgagor  also  should  demise  and  confirm.     The  rent  may  be  reserved 


584  Title  XV.     Mortgage.     Ch.  II.    5.  20—21. 

20.  Where  a  mortgagee  in  possession  of  a  lease  for  lives  or 
years  renews  it,  he  will  be  considered  in  equity  as  a  trustee  for 
the  mortgagor;  who  will  be  entitled  to  such  new  lease,  on  pay- 
ment of  the  money  borrowed  ;  because  such  renewal  is  supposed 
to  be  obtained  in  consequence  of  the  possession  of  the  original 
lease.  But  in  a  case  of  this  kind  the  mortgagee  will  be  allowed 
to  add  the  fine  paid  for  the  renewal  to  his  principal ;  and  to  re- 
ceive interest  for  it.  (a)  l 

21.  Where  a  mortgagee  is  put  into  possession  of  the  lands,  or 
where  he  enters  after  forfeiture,  he  becomes  a  steward  or  bailiff 
to  the  mortgagor,  and  is  therefore  subject  to  account  with  him  for 
the  rents  and  profits  of  the  estate.2  He  is  not,  however,  obliged 
to  account  according  to  the  value  of  the  lands ;  that  is,  he  is  not 
bound  by  any  proof  the  lands  were  worth  so  much,  unless  it  can 
likewise  be  proved  that  he  made  so  much  of  them,  or  might  have 
done  so,  had  it  not  been  for  his  own  wilful  default ;  as  if  he 
turned  out  a  sufficient  tenant,  who  held  it  at  so  much  rent,  or 
refused  to  accept  a  sufficient  tenant,  who  would  have  given  so 
much  for  it.     Because  it  is  generally  the  laches  of  the  mortgagor 

that  he  lets  the  lands  go  into  the  hands  of  the  mortgagee, 

88  *     *  by  the  non-payment  of  the  money ;  therefore  when  the 

mortgagee  enters,  he  is  only  accountable  for  what  he  ac- 

(a)  Tit.  12,  c.  1.    Manlove  v.  Ball,  2  Vera.  84. 


generally,  and  the  covenants  from  the  lessee  should  be  made  with  the  mortgagee,  and 
not  with  the  mortgagor  severally.  Sometimes  a  power  is  reserved  in  the  mortgage 
for  the  mortgagor  to  appoint  by  way  of  demise,  in  which  case  the  lease  takes  effect 
as  an  appointment  of  the  use  to  the  lessee  for  the  term  :  in  this  instance  the  res- 
ervation may  be  general,  and  the  covenants  should  be  entered  into  with  the  mort- 
'•■ao-ee  and  also  with  the  mortgagor  severally,  as  where  the  lease  operates  as  a  common 
law  demise.  . 

If  the  mortgage  is  of  leaseholds,  of  course  the  mortgagor  cannot,  under  a  power  to 
lease  in  the  mortgage  deed,  make  an  underlease  of  the  legal  estate  without  the  con- 
currence of  the  mortgagee.] 

i  See  ante,  tit.  12,  ch.  J,  §  62,  note;  Slee  v.  Manhattan  Co.,  1  Paige,  48. 

2  The  mortgagee,  in  a  Welsh  mortgage,  receives  the  rents  and  profits  in  lieu  of 
interest;  and  therefore  he  is  not,  ordinarily,  liable  to  account  for  them.  See  ante, 
ch.  1,  §  19,  note;  Story  on  Bailm.  §  233;  1  Pow.  on  Mortg.  373,  a,  and  note  (E.)  by 
Coventry.  [A  mortgagee,  by  taking  possession,  assumes  the  duty  of  treating  the  prop- 
erty as  a  provident  owner  would  treat  it,  Shaeffer  v.  Chambers,  2  Halst.  Ch.  R.  548. 
A  mortgagee  of  an  undivided  part  of  land,  on  entering  into  possession,  is  entitled  to  his 
share  of  the  rents  and  profits,  although  his  entry  be  made  for  the  purpose  of  foreclos- 
ure, and  be  insufficient  for  that  purpose.     Shepard  v.  Richards,  2  Gray,  424.] 


Title  XV.     Mortgage.    Ch.  II.   s.  21—24.  585 

tualhj  receives,  and  is  not  bound  to  take  the  trouble  of  making 
the  most  of  another's  property,  (a) 1 

22.  If  the  mortgagor  proves  that  the  estate  was  let  at  a  certain 
price,  while  in  the  hands  of  the  mortgagee,  that  will  be  deemed 
the  rate  at  which  it  was  let  the  whole  time,  unless  the  mortgagee 
shows  the  contrary,  (b)  2 

23.  If  a  mortgagee  enters  upon  the  estate  mortgaged,  and 
thereby  keeps  out  other  creditors,3  and  yet  allows  the  mortgagor 
to  receive  the  rents  and  profits,  he  will  be  charged  with  all  the 
profits  which  he  might  have  made  after  entry,  (c) 

24.  Where  a  mortgagee  permits  the  mortgagor  to  make  use  of 
his  incumbrance  in  keeping  out  other  creditors,  he  will  be  subject 

(a)  1  Veru.  45,  476.  2  Atk.  534.  (Gore  v.  Jenness,  1  Applet.  53.  4  Kent,  Coram.  165, 
3  Tow.  Mort.  946,  a.) 

(b)  (Blacklockv.  Barnes,)  Sel.  Ca.  in  Chan.  63.    (3  Pow.  on  Mort.  949, 1.) 

(c)  (Coppringr.  Cooke,)  1  Vern.  270. 

1  See  4  Kent,  Coram.  166.  But  if  the  profits  are  reduced  or  lost  by  the  wilful 
default  or  gross  negligence  of  the  mortgagee,  he  is  accountable  for  all  that  he  might 
by  due  care  and  diligence  have  received.  Ibid. ;  Moore  v.  Aylett,  1  Hen.  &  Munf. 
29 ;  Saunders  v.  Frost,  5  Pick.  259,  270  ;  Davenport  v.  Tarleton,  1  Marsh.  244  ; 
3  Pow.  on  Mortg.  949,  a,  note  (E.  2),  Rand's  ed. ;  Hughes  v.  Williams,  12  Ves.  493  ; 
Wragg  v.  Denham,  2  Y.  &  Coll.  117  ;  Robertson  v.  Campbell,  2  Call,  421.  But  a 
mortgagee  is  not  accountable  for  rents  and  profits  accruing  from  improvements 
made  by  himself,  at  his  own  expense.     Moore  v.  Cable,  1  Johns.  Ch.  R.  385. 

2  If  the  mortgagee  himself  retains  possession  of  the  lands,  he  will  be  charged 
with  the  utmost  value  they  would  have  produced,  with  ordinary  care,  exclusive  of 
taxes  and  repairs  ;  but  if  he  enters  into  receipt  of  the  rents,  he  will  be  accountable 
only  after  the  rate  of  the  rent  reserved.  Trimleston  v.  Hamill,  1  B.  &  Beat,  385; 
Van  Buren  v.  Olmstead,  5  Paige,  9.  And  he  is  not  chargeable,  ordinarily,  with  in- 
terest on  the  rents  received.     Breckenridge  v.  Brooks,  2  A.  K.  Marsh.  239. 

3  Or,  other  incumbrancers,  of  whose  liens  he  has  notice.  See  3  Pow.  on  Mortg. 
949,  b,  by  Coventry ;  Ackland  v.  Gaisford,  2  Madd.  R.  28.  I  The  mortgagee  in  pos- 
session is  not  bound  to  engage  in  speculations  and  adventures  for  the  benefit  of  the 
mortgagor,  or  of  prior  incumbrancers  ;  nor  is  he  to  be  entangled  in  minute  inquiries 
whether  some  person  would  not  have  given  more,  which  was  never  communicated. 
But  if  he  speculates,  he  does  so  at  his  own  hazard.  Hughes  v.  Williams,  12  Vcs. 
493.  But  he  is  not  accountable  for  profits  prior  to  notice  of  the  incumbrance  ;  for, 
until  then,  the  incumbrancer  cannot  be  said  to  be  injured.  Maddocks  v.  Wren,  2  Ch. 
Rep.  109.  The  doctrine  in  the  text  however,  does  not  apply  to  the  case  of  a 
merely  formal  entry  of  the  mortgagee,  for  the  purpose  of  foreclosure,  under  the  pro- 
visions of  a  State  statute  which  permits  that  method  of  foreclosure  by  entry  and  subse- 
quent lapse  of  time  without  redemption  ;  although  the  mortgagor  has  been  permitted 
to  remain  in  possession  ;  for  the  subsequent  incumbrancer  might  enter,  or  redeem, 
and  thus  protect  himself.  But  if  the  prior  mortgagee  should  attempt  to  prevent  the 
entry  of  the  second,  he  would  be  held  accountable  to  him  for  all  the  profits  which  he 
has  thereby  prevented  him  from  receiving.     Charles  v.  Dunbar,  4  Met.  498. 


586  Title  XV.     Mortgage.     Ch.  II.  s.  24—27. 

to  account  for  the  profits,  from  the  time  when  the  creditors  were 
entitled  to  their  remedy.1 

25.  A  person  made  a  mortgage  of  his  estate,  and  afterwards 
became  a  bankrupt.  The  assignees  brought  an  ejectment  for  the 
recovery  of  the  lands  comprised  in  the  mortgage.  The  mortgagee 
refused  to  enter,  but  suffered  the  bankrupt  to  fence  against  the 
assignees,  with  this  mortgage.  The  Lord  Keeper  said,  the  mort- 
gagee should  be  charged  with  the  profits  from  the  time  when  the 
ejectment  was  delivered,  (a) 

26.  If  a  mortgagee  in  possession  assigns  over  his  mortgage, 
without  the  assent  of  the  mortgagor,  he  is  bound  to  answer  for 
the  profits,  both  before  and  after  the  assignment ;  though  assigned 
only  for  his  own  debt :  for  he  is  under  a  trust  to  answer  the 
profits  of  the  pledge ;  and  it  is  a  breach  of  trust  to  assign  such 
pledge  to  an  insolvent  person,  (b) 

27.  A  mortgagee  will  not  be  allowed  any  thing  for  his  trouble 
in  receiving  the  rents  of  the  estate  himself :  but  if  he  is  obliged  to 
employ  a  bailiff  or  agent,  he  will  be  allowed  what  he  has  paid  to 
him.  And  although  there  be  a  private  agreement  between  the 
mortgagor  and  mortgagee,  for  an  allowance  to  the  mortgagee  for 
his  trouble  in  receiving  the  rents  of  the  estate,  yet  the  Court  of 
Chancery  will  not  carry  it  into  execution  ;  for  they  will  not  suffer 
him  to  receive  more  than  his  principal  and  interest,  (c)  2 

(«)  Chapman  v.  Tanner,  1  Vern.  267.  (b)  1  Ab.  Eq.  328. 

(c)  3  Atk.  518.    2  Atk.  120.     10  Ves.  405. 


1  After  judgment  in  ejectment  brought  by  the  mortgagee,  he  maybe  compelled  to 
take  possession,  or  to  account  as  if  he  had  taken  it.  Buckingham  v.  Gayer,  1  Vern. 
258 ;  3  Pow.  on  Mortg.  952,  note. 

-  In  the  United  States,»the  general  practice  seems  in  favor  of  allowing  a  reasonable 
compensation  to  mortgagees,  as  trustees  of  the  mortgagor,  for  their  care  and  trouble  in 
managing  and  preserving  the  estate.  See  ante,  tit.  12,  ch.  4,  §  43,  note.  In  New  York 
and  Kentucky,  the  English  rule  has  been  adhered  to.  Manning  v.  Manning,  1  Johns. 
Ch.  It.  534;  Breckenridge  v.  Brooks,  2  A.  K.  Marsh.  239;  4  Kent,  Cornm.  166.  The 
rule  was  reviewed  in  Gibson  v.  Crehore,  5  Pick.  161,  by  Wilde,  J.,  in  the  following 
terms  : — "  With  regard  to  the  defendant's  claim  of  compensation  for  his  care  and  trou- 
ble in  superintending  the  estate  and  receiving  the  rents,  it  seems  to  us  reasonable ;  and 
we  know  of  no  good  reason  why  it  should  be  disallowed.  In  England,  such  an  allow- 
ance is  never  made,  unless  where  a  bailiff  has  been  employed.  But  the  reason  for 
adopting  the  rule  there,  as  I  understand  it,  does  not  apply  here.  In  England,  a  trustee 
is  never  allowed  any  pecuniary  compensation  for  his  services  in  discharging  the  duties 
of  his  trust.  And  a  mortgagee  (as  before  foreclosure  he  holds  the  estate  in  trust  for  the 
mortgagor,  if  he  chooses  to  redeem,)  falls  within  the  scope  of  that  ancient  rule.  Boni- 
thon  v.  Hockmore,  1  Vern.  316.     I  am  aware  that  other  reasons  have  been  thrown  out, 


Title  XV.     Mortgage.     Ch.  II.  s.  28.  587 

28.  A  mortgagee  in  possession  will  be  entitled  to  such  ex- 
penses as  he  is  put  to  in  keeping  the  estate  in  necessary 
repair,  *  which  he  may  add  to  the  principal  of  his  debt,  *  89 
with  interest ;  and  if  a  mortgagee  has  expended  any  sum 
of  money  in  supporting  the  right  of  the  mortgagor  to  the  estate, 
where  his  title  has  been  impeached,  the  mortgagee  may  add  this 
to  the  principal  of  his  debt,  and  it  shall  carry  interest,  la) : 

(«)  3  Atk.  518. 

but  they  appear  to  have  little  weight  in  them  ;  and  the  true  reason  of  the  rule,  as  I  take 
it,  is  the  one  assigned.  In  this  Commonwealth,  the  English  rule  in  regard  to  trustees, 
has  never  been  adopted  ;  on  the  contrary,  claims  of  executors  and  other  trustees  under 
wills  for  compensation  for  their  services  in  the  trust,  have  been  always  allowed ;  and 
similar  allowances  have  been  made  in  Virginia,  Pennsylvania,  and  other  States.  In 
New  York,  where  the  English  practice  has  always  been  so  closely  followed,  the  English 
rule  has  been  adopted.  Green  v.  Winter,  1  Johns.  Ch.  R.  27  ;  Manning  v.  Manning, 
Ibid.  527;  Wilson  v.  "Wilson,  3  Binney,  557;  4  Hen.  &  Munf.  415;  Cranberry's  Exec- 
utor v.  Granberry,  1  Wash.  246. 

':  The  justice  of  this  rule  has  been  called  in  question  ;  we  do  not,  however,  reject  it 
on  that  ground,  but  because  our  usages  and  practice  are  opposed  to  it ;  and  to  adopt  it 
now,  when  trustees  have  accepted  trusts  under  the  expectation  of  compensation  for 
their  services,  would  be  doing  certainly  gross  injustice. 

"We  are,  therefore,  of  opinion,  that  a  reasonable  sum  ought  to  be  allowed  to  the  de- 
fendant for  his  care  and  trouble  in  receiving  the  rents  and  managing  the  estate;  and 
we  think  five  per  cent,  commissions  on  the  rents  received  would  be  a  reasonable  com- 
pensation." [And  the  mortgagee  will  be  allowed  such  further  sum  in  addition  to  the 
five  per  cent,  as  may  afford  him  a  just  and  reasonable  compensation  for  his  services. 
Adams  v.  Brown,  7  Cush.  220.] 

1  Mr.  Coventry  has  so  well  condensed  the  law  on  this  subject,  that  no  apology  will 
be  required  for  transferring  his  entire  note  to  this  place. — "It  may  be  proper,"  he  ob- 
serves, "in  this  place  to  add,  that  the  mortgagee  in  accounting  will  be  allowed  all  costs 
of  suit,  taxes,  renewal  fines,  sums  expended  for  necessary  repairs,  and  lasting  improve- 
ments, or  in  performing  the  covenants  of  the  mortgagor  with  third  persons,  as  in  carry- 
ing into  effect  a  covenant  to  build ;  so  he  will  be  allowed  all  money  expended  in  defence 
of  the  mortgagor's  title,  and  all  sums  paid  for  copyhold  admissions,  heriots.  or  fines, 
with  interest  for  the  same  respectively,  after  the  rate  of  the  principal,  provided  the 
Court  doth  not  direct  otherwise.  Degelder  v.  Depeister,  Finch,  207  ;  Elton  v.  Elton. 
3  Atk.  508;  Godfrey  v.  Watson,  lb.  518  ;  Lomax  v.  Hyde,  2  Vera.  185  ;  Manlove  v. 
Bale,  2  Vera.  84;  2  Bro.  C.  C.  653;  Lacon  v.  Mcrtins,  3  Atk.  4;  Woollcy  r.  Drag, 
2  Anstr.  551 ;  Lyster  v.  Dolland,  1  Ves.  Jim.  436  ;  Hardy  v.  Reeves,  4  lb.  482 ;  Quar- 
rell  r.  Beckford,  1  Madd.  Rep.  281;  Sykcs,  Ex  parte,  1  Buck,  B.  C  349;  Brightwen, 
Ex  parte,  1  Swan.  3.  Where  a  mortgagee,  thinking  himself  absolutely  entitled,  had 
expended  considerable  sums  in  repairs  and  lasting  improvements,  he  was  allowed  such 
expenditure,  but  he  was  directed  to  account  for  wilful  spoils  and  wastes.  Thome  v. 
Newman,  Finch,  38.  And  as  a  general  rule  it  may  be  laid  down,  that  where  a  mort- 
gagee in  possession,  finds  it  absolutely  necessary  for  the  protection  of  the  estate,  to  incur 
extraordinary  expenses,  he  will  be  allowed  them  ;  particularly  if  in  accounts  regularly 
furnished  by  him  for  the  satisfaction  of  the  mortgagor,  the  latter  doth  not  from  time  to 
time  object  to  the  extraordinary  charges  ;  for  they  are  then  to  be  considered  as  incurred 


588  Title  XV.     Mortgage.     Ch.  II.  s.  29. 

29.   It  is  a  rule  of  the  Court  of  Chancery,  in  directing  an  ac- 
count between  a  mortgagor  and  mortgagee,  that  wherever  the 

and  paid  with  the  mortgagor's  approbation :  but  without  the  mortgagor's  acquiescence, 
Lord  Manners,  in  a  recent  case  said,  he  should  have  felt  considerable  difficulty  in 
allowing  charges  for  preservation  of  the  property ;  for  that  even  in  the  case  of  absolute 
necessity,  it  was  incumbent  on  the  mortgagee  to  apprise  the  mortgagor,  as  soon  as  pos- 
sible, of  the  extraordinary  expenditure.  Trimleston  v.  Hamill,  1  Ball  &  Bea.  385.  It 
should  be  added,  that  a  mortgagee  will  not  be  bound  to  keep  up  buildings  in  as  good 
repair  as  he  found  them,  if  the  length  of  time  will  account  for  their  being  dilapidated. 
Russell  v.  Smithers,  1  Anstr.  96  ;  and  a  mortgagee  in  possession  of  mines,  is  not  bound 
to  spend  more  in  working  them  than  a  prudent  owner  would  do.  Eowe  v.  Wood,  2  Jac. 
&  Walk.  553. 

"In  estimating  lasting  improvements,  old  buildings  pulled  down,  if  incapable  of  repair, 
are  to  be  valued  as  old  materials  only.  Eobinson  v.  Kidley,  6  Madd.  2.  Lands  were 
limited  by  marriage  settlement  upon  failure  of  issue  male,  to  daughters  and  their  heirs, 
until  the  next  remainder-man  should  pay  them  £3000  ;  there  being  no  sons,  and  four 
daughters,  they  entered.  The  Master  of  the  Bolls  decreed  that  they  should  account 
for  the  profits,  and  that  the  rents  should  be  applied,  first  to  pay  the  interest,  and  then  to 
sink  the  principal,  as  in  the  case  of  a  common  mortgage,  which  decree  was  affirmed  by 
the  Lord  Chancellor,  with  this  variation,  that  the  principal  should  not  be  sunk  till  a 
third  part  was  raised  above  the  interest,  and  so  again,  when  another  third  part  was 
raised.     Blagrave  v.  Clunn,  2  Vera.  523,  57G. 

"It  seems  that  money  laid  out  by  a  mortgagee  in  repairs  and  beneficial  improve- 
ments, form  a  lien  on  the  land,  ante,  G71  ;'  but  in  ordinary  cases,  money  laid  out  in  im- 
proving premises  does  not  create  a  lien ;  yet  if  a  party,  conceiving  himself  to  be  owner, 
makes  lasting  improvements,  a  Court  of  Equity,  it  is  assumed,  would  not  take  the 
estate  from  him  without  compelling  the  plaintiff  to  make  some  allowance  for  the  sum 
expended  in  improving  his  premises.     Swau  v.  Swan,  8  Erice,  518. 

"In  ascertaining  what  was  due  on  the  mortgage  of  a  house  and  the  appurtenances  to 
a  mort^a^ee  who  had  taken  possession,  the  Master  had  allowed  him  the  costs  of  some 
improvements  which  he  had  made.  The  building  being  in  a  very  dilapidated  condi- 
tion, he  had  rebuilt  the  kitchen,  pantry,  &c. ;  and  he  had  the  house  double  roofed,  in- 
stead of  being  as  it  was  before,  only  single  roofed.  The  mortgagee  had  been  charged 
with  an  occupation  rent;  and  that  rent  had  been  estimated  with  reference  to  the  in- 
creased value  of  the  premises  caused  by  the  new  erections. 

"  The  mortgagor  excepted  to  the  report,  on  the  ground  that  he  ought  not  to  be 
charged  with  the  sums  expended  on  the  premises  by  the  mortgagee.  For  the  exception 
it  was  contended,  that  a  mortgagee  had  no  right  to  increase  the  amount  of  the  charge 
on  the  property  by  expending  money  upon  it  without  the  sanction  of  the  mortgagor. 
If  the  property  began  to  fall- into  a  state  of  dilapidation,  which  was  likely  to  diminish 
its  value  so  much  that  it  would  not  be  an  adequate  security  for  his  money,  his  remedy 
was  by  foreclosure,  and  not  by  laying  out  money  in  what  the  mortgagee  might  conceive 
to  be  repairs  or  improvements,  but  which  the  mortgagor  might  not  choose  to  have 
made.  For  the  report,  it  was  urged  that  the  improvements  appeared  by  the  finding  of 
the  Master  to  have  been  substantial  and  proper,  and  a  mortgagee  was  justified  in  acting 
as  a  provident  owner  would  have  done.  Nothing  would  be  more  injurious  to  mort- 
gagors than  that  a  mortgagee  should  be  unable,  with  safety  to  himself,  to  expend 
money  in  maintaining  the  premises  in  good  repair.  The  Vice-Chancellor: — This  mort- 
gagee has  not  made  new  buildings  for  new  purposes  ;  he  has  only  erected  new  buildings 
on  the  site  of  the  old,  and  for  the  same  purposes  as  were  served  by  them.    The  new 


Title  XV.     Mortgage.     Ch.  II.  s.  29.  589 

gross  sum  received  exceeds  the  interest,  it  shall  be  applied  to 
sink  the  principal.     "  But  this  (says  Lord  Hardwicke)  is  often 


buildings  are  merely  substitutions  for  those  which  were  too  ruinous  to  be  any  longer 
useful.      This  exception  must  be  overruled.     Marshall  v.  Cave,  MSS.  Mich.  1824, 

Chanc. 

"  The  Master  had  charged  the  mortgagee  with  an  occupation  rent,  not  from  the  time 
when  he  recovered  possession  of  the  premises,  but  only  from  the  time  when  the  repairs 
had  been  completed. 

,;An  exception  was  taken  to  the  report,  on  the  ground  that  the  occupation  rent  ought 
to  have  been  calculated  from  the  date  when  the  mortgagee  entered  into  possession. 
The  mortgagor,  it  was  said,  was  here  charged  with  interest  during  a  time  when  the 
mortgagee  was  in  possession  of  the  property,  and  yet  was  charged  with  no  rent.  Was 
the  mortgagee  to  be  allowed,  first  to  occupy  the  premises  gratis,  and  then  to  charge 
interest  1  On  the  other  hand,  it  was  answered  that  the  finding  of  the  Master  showed 
that,  at  the  time  when  the  mortgagee  recovered  possession,  the  premises  were  in  so 
ruinous  a  state,  that  no  rent  could  have  been  gotten  for  them ;  and  a  mortgagee  could 
not  be  charged  with  rent  for  that  which  appeared  to  be,  in  truth,  of  no  annual  value. 
The  Vice-Chancellor  was  of  this  opinion,  and  overruled  the  exception.     S.  C. 

"  By  the  Roman  law,  if  a  mortgagee  had  been  at  any  necessary  charges  for  the  pre- 
servation of  the  pledge,  whether  he  was  in  possession  of  it  or  not,  the  debtor  was  bound 
to  reimburse  him,  although  the  thing  were  no  longer  in  being,  as  if  a  house  repaired  by 
the  mortgagee  had  been  carried  away  by  a  flood,  or  burnt  down,  without  his  fault;  and 
if  the  pledge  were  still  existing,  and  in  the  custody  of  the  mortgagee,  he  was  allowed 
to  detain  it  for  expenses  of  this  .kind;  for  they  were  considered  as. augmenting  the 
debt,  and  as  forming  a  part  of  it."     See  3  Pow.  on  Mortg.  95G,  note  (q,)  Rand's  ed. 

It  thus  appears  that  the  expense  of  substituting  new  buildings  for  old,  where  the  old 
buildings  were  so  dilapidated  as  to  be  past  any  beneficial  repair,  is  a  fair  charge  in 
favor  of  the  mortgagee.     It  falls  under  the  head  of  necessary  and  prudent  repairs, 
which  he  may  and  ought  always  to  make,  and  beyond  which  he  is  not  ordinarily  per- 
mitted to  go.    Russell  v.  Blake,  2  Pick.  505.     And  see  Saunders  v.  Frost,  5  Pick.  259- 
The  expense  of  insurance  against  fire  is  not  a  charge  on  the  premises  mortgaged,  unless 
by  agreement  with  the  mortgagor  or  owner.     Neither  is  the  cost  of  making  an  aque- 
duct, unless  it  appears  that  without  it  the  premises  could  not  have  been  supplied  with 
water.     Saunders  v.  Frost,  supra.     [And  if  the  mortgagee,  without  any  agreement  be- 
tween himself  and  the  mortgagor,  gets  his  interest  insured,  and  receives  the  amount  of 
insurance  under  his  policy,  it  does  not  affect  his  claim  against  the  mortgagor.   The  two 
claims  are  wholly  distinct  and  independent.  "White  v.  Brown,  2  Cush.  412—417.]    Nor 
will  the  mortgagee  be  allowed  the  cost  of  improvements  made  by  the  clearing  of  wild 
lands  ;  Moore"  v.  Cable,  1  Johns.  Ch.  R.  385  ;  nor  for  any  other  improvements,  made 
without  the  consent  of  the  mortgagor.     Quinn  v.  Brittain,  1  Hoffm.353;  Sandon  v. 
Hooper,  6  Beav.  24G.     But  he  will  be  allowed  for  all  taxes  paid  by  him  ;  Faurc  v. 
Winans,  1  Hopk.  Ch.  R.  283 ;  and  for  air  expenses,  properly  incurred  for  the  recovery 
of  the  mortgage-money;  Ellison  v.  Wright,  3  Russ.  458;  or  in  supporting  the  title  of 
the  mortgagor,  when  impeached ;    Godfrey  v.  Watson,  3  Atk.  517  ;  or  otherwise  neces- 
sarily incurred  in  the  defence,  redemption,  relief,  and  protection  of  the  estate,  and  in 
reparation  of  the  premises.     Hagthorp  v.  Hook,  1  G.  &  J.  273 ;    Page  v.  Foster,  7  N. 
Ilamp.  392  ;  Burrowcs  v.  Mulloy,  2  Jones  &  Lat.  521  ;  Sandon  v.  Hooper,  C  Beav.  246 ; 
Neale  v.  Hagthorp,  3  Bland,  551.     [Miller  v.  Whittier,  36  Maine,  (1  Heath,)  577; 

vol.  i.  50 


590  Title  XV.     Mortgage.     Ch.  II.  s.  29. 

attended  with  great  hardships  to  the  mortgagees,  where,  as  in 
this  case,  the  sum  was  large  ;  ,£4000  principal,  and  the  mortgagee 
forced  to  enter  upon  the  estate,  and  could  only  satisfy  his 
debt  by  parcels,  and  is  a  bailiff  to  the  mortgagor,  without  salary, 
subject  to  account;  and,  therefore,  truly  said  the  Master,  he  is 
not  obliged,  for  every  trifling  small  exceed  of  interest,  to  apply 
it  to  sink  the  principal ;  nor  do  I  know  that  the  Court  has  ever 
laid  it  down  as  an  invariable  rule,  that  the  Master  must  always, 
in  taking  such  accounts,  make  annual  rests."  (a)1 

(a)  2  Atk.  534. 


Riddle  v.  Bowman,  7  Foster,  (X.  H.)  236;  McCumber  v.  Gilman,  15  111.  3S1.]  See 
further,  as  to  the  mode  of  stating  the  account,  Whittick  v.  Kane,  1  Paige,  202;  Allen 
v.  Clarke,  17  Pick.  47 ;  Tucker  v.  Buffum,  16  Pick.  46. 

But  in  regard  to  allowing  the  mortgagee  for  moneys  expended  in  performing  the 
mortgagor's  covenant  with  third  persons  to  build,  it  may  be  doubted  whether  the  courts 
would  now  administer  the  rule  as  broadly  as  it  is  laid  down  by  Mr.  Coventry,  in  the 
beginning  of  this  note ;  since  it  has  recently  been  decided  that  a  covenant  to  build 
houses  does  not  run  with  the  land.  Doughty  v.  Bowman,  12  Jur.  182.  Yet  in  Hardy 
v.  Reeves,  4  Ves.  482,  the  Master  was  directed  to  take  an  account  of  moneys  expended 
by  the  mortgagee  in  the  erection  of  new  buildings,  under  the  circumstances  of  that  case ; 
lb.  471,  472;  and  covenants  to  rebuild  are  admitted  to  run  with  the  land.  See  Thomas 
>•.  Von  Kapff,  6  G.  &  J.  372  ;  Harris  v.  Coulbourn,  3  Harringt.  338  ;  Vernon  v.  Smith, 
5  B.  &  Ad.  1,  per  Best,  J.  So,  of  covenants  not  to  build.  Sec  Norman  v.  Wells,  17 
Wend.  136  ;  Watertown  v.  Cowen,  4  Paige,  510. 

Though  the  mortgagee  may  discharge  prior  incumbrances,  he  is  not  obliged  so  to  do. 
Marine  Bank  v.  Biays,  4  H.  &  J.  343. 

The  rule  refusing  the  allowance  of  lasting  improvements  in  building,  has  been  sub- 
jected to  some  exceptions  in  special  cases ;  one  of  which  is  mentioned  by  Lord  Hard- 
wicke  in  Godfrey  v.  Watson,  above  cited ;  and  others  have  been  admitted  under  the 
equity  arising  out  of  the  circumstances  of  the  several  cases.  See  Conway  v.  Alexander, 
7  Cranch,  218;  Ford  v.  Philpot,  5  H.  &  J.  312;  4  Kent,  Coram.  167;  Dougherty  v. 
McColgan,  6  G.  &  J.  275.  [McCumber  v.  Gilman,  15  111.  381.  Where  the  holder  of 
•the  equity  sees,  in  silence,  the  purchaser  in  good  faith  making  improvements  on  the 
premises,  he  must,  when  he  redeems,  pay  for  the  improvements,  less  the  rents  and 
profits.    Bradley  v.  Snider,  14  111.  263 ;  Boston  Iron  Co.  v.  King,  2  Cush.  400.] 

In  some  of  the  United  States,  the  heads  of  allowance  to  the  mortgagee,  upon  redemp- 
tion of  the  premises,  are  specially  enumerated  in  the  statutes.  Thus,  in  Maine  and 
Massachusetts,  he  is  to  be  allowed  for  reasonable  repairs  and  improvements,  and  for  all 
taxes  lawfully  assessed,  and  for  all  other  necessary  expenses.  See  Maine  Rev.  St. 
1840,  ch.  125,  §  16;  Mass.  Rev.  St.  1836,  ch.  107,  §  15.  In  Rhode  Island,  he  is  to  be 
allowed  for  repairs,  insurance,  improvements,  and  other  necessary  expenses.  R.  Isl. 
Rev.  St.  1844,  p.  198.  In  New  Jersey,  no  allowance  is  made  to  him  for  his  trouble,  nor 
for  improvements ;  but  he  is  allowed  for  all  taxes  paid,  and  for  necessary  repairs. 
Elm.  Dig.  p.  347,  n. 

1  Annual  rests  are  not  to  be  made  by  the  Master,  unless  he  is  specifically  so  or- 
dered by  the  decree.     Webber  v.  Hunt,  1  Madd.  R.  13  ;  3  Power  on  Mortg.  957,  note  (T) 


Title  XV.     Mortgage.     Ch.  II.  s.  30—32.  591 

30.  A  mortgagee,  either  before  or  after  he  enters  into  posses- 
sion, may  assign  over  his  mortgage.  But,  in  all  such  cases,  the 
assignee  is  only  entitled  to  ivhat  is  really  due  on  the  mortgage  at 
the  time  of  the  assignment ;  not  to  what  may  appear  due  on  the 
face  of  the  mortgage.  It  is,  therefore,  the  universal  practice  to 
make  the  mortgagor  a  party  to  the  assignment ;  for  otherwise  it 
may  happen  that  the  mortgagee,  having  received  a  part  of  the 
money,  may  assign  the  mortgage,  in  consideration  of  the  whole 
sum  for  which  it  was  originally  made  ;  in  which  case  the  assignee 
would  be  defrauded ;  as  he  could  only  oblige  the  mortgagor  to 
pay  him  what  remained  due.  (a)] 

31.  It  was  held  in  a  subsequent  case,  that  even  after  an  as- 
signment of  a  mortgage,  payments  to  the  mortgagee,  without 
notice,  must  be  allowed  by  the  assignee  ;  though  the  assign- 
ment of  the  mortgage  (the  lands  being  in  Middlesex)  was 
registered,  (b) 

32.  Although  the  mortgagee  enters  into  possession,  yet  as 
long  as  the  right  of  redemption  exists,  the  mortgage  is  only  con- 
sidered as  personal  estate  ;  the  debt  being  the  principal,  and  the 

(a)  Mathews  v.  Walwyn,  4  Ves.  118.     (Jackson  r.  Campbell,  5  Wend.  572.) 

(b)  Williams  v.  Son-ell,  4  Ves.  389. 

by  Coventry.  The  general  rule  is,  to  charge  the  mortgagee  with  interest, — 1.  Where 
the  mortgage  is  satisfied,  and  a  considerable  balance  remains  in  his  hands ; — 
2.  Where  he  refuses  to  account ;— 3.  Where  he  has  notice  of  a  subsequent  mortgage,  to 
pay  which  he  is  requested  to  apply  the  balance  in  his  hands.  Archdeacon  v.  Bowes, 
13  Price,  353  ;  Wilson  v.  Metcalf,  1  Russ.  530.  In  other  cases,  the  rule  is  as  stated  by 
Sir  Samuel  Romilly,  and  agreed  to  by  Sir  Wm.  Grunt,  M.  R.,  in  Davis  v.  May, 
1  Coop.  Ch.  Cas.  238 ;  namely,  to  cast  the  debt  and  interest,  on  the  one  hand,  and  the 
total  amount  of  rents,  without  interest,  on  the  other  hand,  and  deduct  the  one  from  the 
other. 

In  general,  the  Courts  do  not  direct  annual  rests  to  be  made  in  the  account.  The 
rule  is  to  cast  the  running  interest  only  ;  leaving  it  to  the  mortgagor  to  show  a  case 
forming  an  exception  to  this  rule.  The  most  common  exceptions,  in  which  annual 
rests  are  made,  are,  where  there  was  no  interest  in  arrear  when  the  mortgagee  took 
possession  ;  Shcphard  v.  Elliott,  4  Madd.  R.  254  ;  and  where  the  rents  considerably 
exceed  the  interest.  Gould  v.  Tancred,  2  Atk.  533;  Reed  i'.  Reed,  10  Pick.  398. 
Where,  in  the  latter  case,  the  interest  on  the  mortgage  debt  was  payable  semiannually, 
the  Court  directed  semiannual  rests  to  be  made.  Gibson  v.  Crehorc,  5  Pick.  140. 
And  see  Wilson  v.  Cluer,  3  Beav.  136 ;  Binnington  v.  Harwood,  1  Turn.  &  Russ.  477; 
Van  Vronker  v.  Eastman,  7  Met.  157;  Post,  ch.  4,  §  73 ;  Horlock  v.  Smith,  1  Colly. 
N.  C.  287.     [Boston  Iron  Co.  v.  King,  2  Cush.  400.} 

1  Where  the  mortgagor  is  a  party  to  the  assignment,  the  sum  paid  by  the  assignee, 
though  including  interest  then  due,  constitutes  a  new  capital,  on  which  interest  is  to 
be  computed.     See  post,  ch.  4,  §  G5. 


592  Title  XV.     Mortgage.     Ch.  II.  s.  32—38. 


O  *  O 


land  the  accessary.     And  if  the  mortgagor  does  not  redeem,  the 
personal  representatives  of  the  mortgagee  will  be  entitled  to  the 

land,  (a) 
90  *  *  33.  A  mortgage  was  forfeited,  the  heir  of  the  mort- 

gagee was  in  possession,  and  no  want  of  assets :  but  as 
the  mortgage  money  was  part  of  the  personal  estate,  the  heir  was 
decreed  to  convey  the  lands  to  the  administrator  of  the  mort- 
gagee, (b) 

34.  In  a  modern  case  it  was  resolved,  that  lands,  held  origi- 
nally under  old  mortgages,  passed  by  a  general  devise,  though 
no  release  of  the  equity  of  redemption  appeared ;  and  that  there 
was  no  equity  between  the  heir  or  devisee  and  the  personal 
representative,  to  convert  property  from  the  state  in  which  it  is 
found  at  the  death  of  the  testator,  (c) 

35.  If,  however,  it  appear  to  have  been  the  intention  of  the 
mortgagee  that  it  should  not  go  as  personal  estate,  the  personal 
representatives  will  not  be  entitled  to  it. 

36.  A  testator  having  a  mortgage  in  fee,  devised  it  to  his  two 
daughters  and  their  heirs.  One  of  the  daughters  dying  without 
issue,  her  husband  and  administrator  claimed  a  moiety  of  the 
lands,  as  part  of  his  wife's  personal  estate  ;  it  being  a  mortgage 
not  foreclosed,  nor  the  equity  of  redemption  released.  The  Court 
said,  that  although  it  was  a  mortgage  as  between  the  mortgagor 
and  mortgagee,  yet  it  being  the  testator's  intention  that  it  should 
pass  as  real  estate,  it  must  go  to  the  deceased  daughter's  heir  at 
law.  (d) 

37.  Mr.  Garret  being  indebted  to  his  brother,  devised  to  him  a 
mortgage  for  a  larger  sum,  for  which  he  had  got  a  decree  of  fore- 
closure, but  died  before  the  account  was  taken,  or  the  mortgagor 
absolutely  foreclosed.  Lord  King  declared  that  the  lands  in 
mortgage,  being  devised  as  real  estate,  should  be  considered  as 
such,  between  the  devisor  and  devisee;  therefore,  though  the 
legacy  was  greater  than  the  debt,  it  should  not  go  in  satisfaction 
of  it,  but  if  assets  fell  short,  it  was  still  to  be  considered  as  per- 
sonal estate,  for  the  payment  of  debts,  (e) 

38.  It  is  said  by  Lord  Mansfield,  that  "  a  mortgage  is  a  charge 
upon  land ;  and  whatever  would  give  the  money  will  carry  the 

(a)  Treat,  of  Eq.  B.  3,  c.  1,  <§  13.  (b)  Ellis  v.  Guavas,  2  Chan.  Ca.  50. 

(c)  Att.-Gen.  v.  Bowyer,  5  Ves.  300.  (d)  Noys  v.  Mordaunt,  2  Vern.  531. 

(e)  Garret  v.  Evers,  Mos.  Rep.  364. 


Title  XV.     Mortgage.     Ch.  II.  s.  38—39.  593 

estate  in  the  land  along  with  it,  to  every  purpose.  The  estate  in 
the  land  is  the  same  thing  as  the  money  due  upon  it.  It  will  be 
liable  to  debts  ;  it  will  go  to  executors  ;  it  will  pass  by  a  will  not 
made  and  executed  with  the  solemnities  required  by  the 
Statute  *  of  Frauds.  The  assignment  of  the  debt,  or  for-  *  91 
giving  it,  will  draw  the  land  after  it,  though  the  debt 
were  forgiven  only  by  parol ;  for  the  right  to  the  land  would 
follow,  notwithstanding  the  Statute  of  Frauds."  (a) 

39.  This  passage  can  only  mean  that  mortgages  are  so  far  out 
of  the  Statute  of  Frauds,  at  the  payment  of  the  debt  converts 
the  mortgagee  into  a  trustee  for  the  mortgagor ;  who,  by  an  ap- 
plication to  the  Court  of  Chancery,  may  obtain  a  decree  to  com- 
pel the  mortgagee  to  reconvey,  or  assign  the  lands  by  proper 
assurances ;  not  that  the  payment  of  the  money  shall,  of  itself, 
have  the  effect  of  restoring  the  legal  estate  to  the  mortgagor, 
without  any  conveyance,  (by 

(a)  Martin  v.  Mowlin,  2  Burr.  978.  (&)  {Ante,  c.  1,  §  14.     Post,  c.  4,  §  81,  note.) 


i  In  the  United  States,  the  doctrine  supposed  to  be  most  prevalent  is,  that  by  pay- 
ment of  the  debt  by  the  mortgagor,  the  estate  of  the  mortgagee  is  annihilated.     This 
is  universally  agreed  to  be  the  case,  where  the  mortgagor  has  remained  in  possession 
of  the  land,  and  the  debt  is  paid  before  condition  broken.     If  payment  has  been  made, 
though  after  breach,  it  is  a  good  defence  to  an  action  at  law,  by  the  mortgagee,  to  re- 
cover possession  ;  at  least  in  those  States  where,  before  a  writ  of  habere  facias  can  be 
issued,  the  amount  due  on  the  mortgage  is  first  to  be  ascertained,  and  a  day  allowed  to 
the  mortgagor  to  pay  it ;  and  such  provision,  in  substance,  though  in  various  forms  in 
practice,  exists  in  many  of  the  States.     For,  as  was  observed  by  Story,  J.,  "  unless  the 
mortgagor  can  resist  a  recovery  by  the  mortgagee  at  law,  he  may  be  turned  out  of  pos- 
session, when  nothing  is  due  on  the  mortgage,  against  the  plainest  principles  of  justice, 
and  be  driven  by  a  circuity  of  action  to  enforce  his  acknowledged  rights.    If  a  cent 
only  be  due  on  the  mortgage,  the  mortgagee  can  obtain  no  judgment  at  law  in  his 
suit,  but  a  conditional  one,  and  no  possession  at  all  if  that  cent  is  paid  ;  and  yet,  if 
nothing  is  due,  his  rights  are  absolute,  and  he  is  entitled  to  an  unconditional  surrender 
of  the  possession.     I  confess,"  added  he,  "I  do  not  understand  the  reasoning  upon 
which  such  a  distinction  can  be  maintained."     3  Mason,  R.  527.     Such  was  held  to  be 
the  law  in  Maine,  in  Gray  v.  Wass,  1  Greenl.  257,  261,  and  Vose  v.  Handy,  2  Grcenl. 
322  332  333    approved  in  Gray  v.  Jenks,  5  Mason,  R.  520 ;  see  also  Crosby  v.  Chase, 
5  Snepl.  369;  [Furbush  v.  Goodwin,  5  Foster,  (N.  H.)  425.     Where  a  deed  absolute 
on  its  face  was  decreed  to  be  a  mortgage,  and  the  mortgage  was  paid,  the  Court   in 
equity  ordered  the  grantor  and  grantee  to  release  the  estate  to  the  person  equitably  en- 
titled to  it,  with  covenants  of  warranty  against  all  persons  claiming  under  them  or 
either  of  them.   Howe  v.  Russell,  36  Maine,  (1  Heath,)  115  ;  Carter  v.  Walker,  2  Ohio, 
N.  S.  339.]     And  such  is  now  held  to  be  the  law  in  Massachusetts.    Wade  v.  Howard, 
11  Pick.  289.    The  law  is  held  in  the  same  manner,  on  general  grounds,  irrespective  of 
positive  statutes,  in  Maryland;  Morgan  v.  Davis,  2  Har.  &  McIIcn.  17  ;  Faxon  v.  Faul, 

50* 


594  Title  XV.     Mortgage.     Ch.  II.  5.  40. 

40.  In  the  case  of  a  mortgage  in  fee,  the  proviso  in  all  modern 
deeds  is,  that  upon  payment  of  the  money  at  the  time  specified, 
the  mortgagor  shall  reconvey  the  estate.  Now,  in  this  case,  even 
a  strict  performance  of  the  condition  will  not  operate  so  as  to 


3  Har.  &  McHen.  399 ;  and  in  New  York,  Jackson  v.  Davis,  18  Johns.  7,  12  ;  Jackson 
v.  Blodget,  5  Cowen,  202;  Rosevelt  v.  Stackhouse,  1  Cowen,  122;  Avnot  v.  Post,  G 
Hill,  65;  Jackson  v.  Crafts,  18  Johns.  110.  So,  in  New  Jersey,  Dcnn  v.  Spinning,  1 
Halst.  471  ;  Harrison  v.  Eldridge,  2  Halst.  407  ;  Van  Meter  v.  Van  Meter,  3  Am.  Law 
Journ.  152,  N.  S.  And  in  Vermont ;  Harvey  v.  Hurlburt,  3  Verm.  561,  semble ;  Barnes  v. 
Beach,  3  Washb.  146  ;  Burton  v.  Austin,  4  Verm.  105.  And  in  Pennsylvania ;  Kinley 
v.  Hall,  4  W.  &  S.  426  ;  Hodgdon  v.  Naglee,  5  W.  &  S.  217.  And  in  Ohio ;  Perkins  v. 
Dibble,  10  Ohio  R.  433  ;  Walk.  Intr.  p.  304,  305.  [See  also  Mason  v.  Hearne,  1  Busbee, 
Eq.  (N.  C.)  88.]  But  it  is  held  otherwise  in  Connecticut;  Sage  v.  Phelps,  2  Day,  151  ; 
Doton  v.  Russell,  17  Conn.  11.  146;  and  in  Kentucky;  Breckenridgc  v.  Brooks,  2 
Marsh.  337 ;  Breckenridge  i\  Ormsby,  1  Marsh.  257  ;  and  in  Virginia ;  Faulkner  v. 
Brockenbrough,  2  Rand.  225  ;  1  Lomax,  Dig.  335,  336. 

In  New  Hampshire,  the  same  doctrine  has  been  held,  as  in  Maine  ;  but  it  was  placed 
by  the  Court  mainly  upon  the  language  of  the  statute,'  which  declared  that  upon  pay- 
ment or  tender  thereof  within  a  time  limited  in  the  statute,  the  deed  should  be  utterly 
void.  Swett  v.  Horn.  1  N.  Hamp.  332  :  and  see  Willard  v.  Harvey,  5  N.  Hamp.  252  ; 
[Heath  v.  West,  6  Foster,  N.  H.  191.]  For  the  law  of  payment  and  tender,  see  2 
Greenl.  on  Evid.  tit.  Payment,  §  516—536 ;  Ibid.  tit.  Tender,  §  600—611,  a. 

In  several  of  the  States,  provision  is  made  by  statutes  for  the  discharge  of  mortgages 
bv  the  entry  of  satisfaction  in  the  margin  of  the  registry.  See  Massachusetts,  Rev.  St. 
1836,  ch.  59,  §  33,  34 ;  Maine,  Rev.  St.  1840,  ch.  125,  §  28 ;  New  Hampshire,  Rev.  St. 
1842,  ch.  131,  §  5,  6  ;    Vermont,  Rev.  St.  1839,  ch.  60,  §  29—31  ;  Rhode  Island,  Rev.  St. 

1844,  p.  260;  New  York,  Rev.  St.  Vol.  II.  p.  45,  3d  cd. :  Elm.  Dig.LL.  New  Jersey,?. 
86,  LL.  Pennsylvania,  by  Dunlop,  p.  35  ;  Delaware,  Rev.  St.  1829,  p.  92  ;  Michigan,  Rev. 
St.  1837,  p.  261  ;  Stat.  1839,  No.  115,  §  13,  p.  219;  Ohio,  Rev.  St.  1841,  p.  270;  Indiana, 
Rev.  St.  1843,  ch.  29,  §  69,  70 ;  Illinois,  Rev.  St.  1839,  p.  155,  156 ;  Missouri,  Rev.  St. 

1845,  ch.  122;  Mississippi,  Rev.  St.  1840,  ch.  34,  §  33,34;  Alabama,  Toulm.  Dig.  p. 
238;  Arkansas,  Rev.  St.  1S37,  p.  580. 

In  Massachusetts,  Vermont,  Rhode  Island,  Pennsylvania,  Delaware,  Michigan,  and 
Missouri,  the  neglect  or  refusal  of  the  mortgagee  to  make  such  discharge,  upon 
request,  renders  him  liable  to  an  action  for  whatever  damages  the  mortgagor  may 
sustain  therefrom.  In  Illinois,  Mississippi,  Alabama,  and  Arkansas,  a  similar  liability 
is  enacted ;  but  the  damages  are  limited,  not  to  exceed  the  amount  of  the  mortgage 
money.  In  the  other  States,  where  this  mode  of  discharge  is  provided,  it  seems 
left  at  the  option  of  the  parties,  and,  therefore,  no  action  is  given  by  statute  for 
refusal. 

Upon  this  provision,  an  argument  was  raised,  in  the  case  of  Gray  v.  Jenks,  before 
cited,  in  favor  of  the  existence  of  a  legal  estate  in  the  mortgagee,  after  payment ; 
on  the  ground  that  a  release  was  thus  recognized  as  essential  to  restore  the  title  to 
the  mortgagor.  "  But  the  whole  argument,"  said  Mr.  Justice  Story,  "  giving  it  its 
full  latitude,  falls  far  short  of  the  cogency  which  is  attributed  to  it.  In  respect  to 
the  statute  action  on  the  case,  it  lies  only  for  such  damages  as  may  arise  from  the 
refusal  to  discharge  the  mortgage  after  satisfaction  ;  but  it  does  not  necessarily  sup- 


Title  XV.     Mortgage.     Ch.  II.  s.  40.  595 

revest  the  legal  estate  in  the  mortgagor,  without  a  reconveyance; 
and  where  the  condition  is  not  strictly  performed,  the  case  is 
much  stronger,  (a) x 

Where  the  mortgage  is  made  by  a  demise  for  years,  the  proviso 
is,  that  if  the  money  be  paid  at  the  time  specified,  the  term  shall 
cease.  And  it  is  agreed  that  where  the  money  is  not  paid  at  the 
time  specified,  the  term  becomes  absolute,  and  must  be  surren- 
dered or  assigned. 

In  the  case  of  ancient  mortgages,  a  court  of  justice  might  pre- 
sume a  reconveyance  of  the  legal  estate ;  but  this  presumption 
admits  the  necessity  of  such  reconveyance,  (b) 

(a)  Harrison  v.  Owen,  1  Atk.  520.  (b)  Tit.  12,  c.  2. 

pose,  that  such  mortgage  constitutes  a  legal  title.  The  existence  of  a  satisfied  mort- 
gage may  throw  a  cloud  over  a  title,  to  the  injury  of  the  owner,  and  may  prevent  a 
profitable  sale.  The  evidence  of  payment  is  liable  to  be  lost,  or  may  exist  only  in 
pais,  and  depend  upon  the  testimony  of  witnesses,  whose  death  may  take  place  long 
before  a  legal  presumption  of  satisfaction  can  arise.  No  person  can  be  insensible 
to  the  value  of  a  clear  unincumbered  title  apparent  upon  the  face  of  the  public 
records ;  nor  of  the  inconvenience  of  subjecting  purchasers  to  the  unravelling  of 
accounts  between  mortgagors  and  mortgagees.  The  law,  therefore,  may  wisely  re- 
cpuire,  that  what  is  a  charge  upon  record  should,  when  discharged,  be  evidenced  by 
an  instrument  of  as  high  verity,  not  only  as  a  preventive  of  litigation,  but  as  a 
security  of  title,  even  though  the  charge  were  extinguished  at  law  ;  as  equity  some- 
times orders  instruments  to  be  delivered  up,  upon  which  there  would  be  a  good 
defence  at  law.  A  construction  of  the  statute  epiite  as  natural  as  that  contended 
for  at  the  bar  is,  that  it  supposes  the  mortgage  extinguished  at  law  by  payment,  and 
means  only  to  provide  a  remedy  for  damages  sustained  by  the  refusal  of  the  mort- 
gagee to  put  an  acknowledgment  of  such  payment  on  record."     3  Mason,  R.  526. 

The  general  doctrine  above  stated,  was  clearly  maintained  by  that  eminent  jurist, 
Chancellor  Kent.     See  4  Kent,  Comm.  p.  193—196,  4th  ed. 

It  may  be  further  remarked,  that  the  practice,  almost  universal  in  the  United  States, 
is  to  insert  in  the  mortgage  deed,  whether  of  a  freehold  or  a  chattel  interest,  a  proviso, 
that,  on  payment  of  the  money  at  the  time  mentioned,  the  deed  shall  be  void.  And 
as  the  time  of  performance  is  not  of  the  essence  of  this  contract,  and  may  be  waived 
by  parol,  the  acceptance  of  the  money  after  the  day  amounts  to  a  waiver  of  the  time, 
and  is  a  substantial  performance  of  the  condition. 

1  In  American  mortgages,  the  proviso  most  usual,  is,  that  the  deed  shall  be  void. 
See  the  preceding  note. 

A  mortgagor  cannot  compel  the  mortgagee  to  rcconvey  the  premises,  prior  to  the 
time  fixed  for  repayment  of  the  mortgage-money ;  although  he  should  tender  the 
full  amount  of  principal  and  interest  due  at  the  time  of  the  tender.  Brown  v.  Cole, 
9  Jur.  290. 


596 


CHAP.  III. 


EQUITY    OP    REDEMPTION. 


Sect.     1.  Nature  of. 

5.  Similar  to  a  Trust  Estate. 
8.  Is   alienable,   devisable,   and 
descendible. 
May      be     mortgaged     and 

charged. 
Subject  to  Curtesy. 
But  not  to  Dower. 
Unless  the  Mortgage  be  for 

Years. 
Subject  to  Crown  Debts. 
17.  Is  Assets  in  Equity. 
22.  And  sometimes  legal  Assets. 
Effect  of  a  Devise  for  Pay- 
ment of  Debts. 
Who  may  redeem. 
A  subsequent  Incumbrancer. 
A   Dowress,   Jointress,    and 
Tenant  by  the  Curtesy. 
33.  The  Crown. 


9. 

11. 

13. 
15. 

16. 


Sect.  35.    Whoever  redeems     must    do 
Equity. 

56.  No  precise  Time  is  fixed  for 

Redemption. 

57.  But  twenty  Years'  Possession 

is  a  bar. 

62.  Exceptions.  I.  Where  there 
is  a  Disability. 

68.  II.  Where  an  Account  has 
been  settled. 

72.  III.  Where  the  Mortgage  has 
been  acknowledged. 

77.  IV.  Where  no  Time  is  ap- 
pointed for  Payment. 

84.  V.  Where  the  Mortgagor  con- 
tinues in  Possession. 

88.  VI.  Where  there-  is  Fraud  in 
the  Mortgagee. 

90.  [Committees  of  Lunatic  Mort- 
gagee may  convey.~] 


Section  1.  We  have  seen  that  when  the  money  borrowed  on 
mortgage  is  not  paid  at  the  time  specified,  the  mortgage  becomes 
forfeited  at  law,  and  the  legal  estate  absolutely  vested  in  the 
morto-ao'ee  ;  but  that  the  Court  of  Chancery  still  allows  the  mort- 
gagor a  reasonable  time  to  redeem,  on  payment  of  the  principal, 
interest,  and  costs;  which  is  called  an  equity  of  redemption. 1 

1  In  those  American  States  in  which  the  cognizance  of  mortgages  is  vested  in  courts 
of  general  chancery  jurisdiction,  the  rules  of  English  law,  stated  in  the  text,  form  the 
general  outline  of  the  course  of  administering  justice.  But  in  very  many  of  the  States 
these  rules,  and  the  course  of  practice,  are  modified  to  a  considerable  extent  by  statutes. 
In  Maim  and  Massachusetts,  the  land  may  be  redeemed  by  a  tender  of  the  amount  due, 
at  any  time  within  three  years  after  entry  of  the  mortgagee  for  the  purpose  of  fore- 
closure, or  other  equivalent  proceeding ;  or,  by  a  bill  in  chancery,  or  statute  process  in 
the  nature  of  a  bill,  without  a  tender.     And  in  the  latter  State,  if  the  money  tendered  is 


Title  XV.     Mortgage.     Ch.  III.  s.  2—3.  597 

2.  An  equity  of  redemption  is  a  mere  creature  of  a  court  of 
equity,  founded  on  this  principle,  that  as  a  mortgage  is  nothing 
more  than  a  pledge  for  securing  the  repayment  of  a  sum  of  money 
to  the  mortgagee,  it  is  but  natural  justice  to  consider  the  owner- 
ship of  the  land  as  still  vested  in  the  mortgagor,  subject  only  to 
the  legal  title  of  the  mortgagee ;  so  far  as  such  legal  title  is 
necessary  to  his  security. 

3.  By  the  statute  4  William  &  Mary,  c.  16,  it  is  enacted,  that 
if  any  person  shall  borrow  money,  &c,  or  become  indebted  for 
any  other  valuable  consideration,  and  for  the  payment  thereof 
shall  voluntarily  give  a  judgment,  statute,  or  recognizance,  and 
shall  afterwards  borrow  any  other  sum  of  money,  or  for  any  other 
valuable  consideration  become  indebted  to  such  other,  and  for  se- 
curing the  repayment  and  discharge  thereof  shall  mortgage  lands 
to  the  second  lender,  or  to  any  other  person  in  trust  for  him,  and 
shall  not  give  notice  to  the  mortgagee  of  such  judgment,  &c,  in 
writing,  before  the  execution  of  the  said  mortgage  or  mortgages, 
such  mortgagor  shall  have  no  benefit  in  the  equity  of  redemption 
of  the  lands  mortgaged,  unless  such  mortgagor  or  his  heirs, 
upon  notice  given  by  the  mortgagee  in  writing,  under  his  hand 
and  seal,  attested  by  two  witnesses,  of  such  former  judgment, 
&c,  shall  within  six  months,  pay  off  and  discharge  the  same,  and 
cause  the  same  to  be  vacated  and  discharged ;  and  if  any  person, 
who  shall  once  mortgage  lands  for  a  valuable  consideration,  shall 
again  mortgage  the  same  lands,  or  any  part  thereof,  to  any  per- 
son, the  former  mortgage  being  in  force,  and  shall  not  discover 
in  writing,  to   the  second  mortgagee,  the  first  mortgage,  such 


refused  by  the  mortgagee,  the  mortgagor  may  recover  the  land  if  he  sues  within  a  year. 
[On  a  bill  to  redeem,  where  the  mortgagee  had  entered  to  foreclose  for  non-payment  of 
interest,  and  pending  the  bill  to  redeem,  the  principal  of  the  mortgage  debt  had  become 
due,  it  was  held,  that  the  mortgagor,  in  order  to  redeem,  must  pay  the  whole  sum  due, 
principal  and  interest.  Adams  v.  Brown,  7  Cush.  222  ;  Stewart  v.  Clark,  11  Met.  384  ; 
Mann  v.  Richardson,  21  Pick.  355.]  In  several  of  the  States,  the  common-law  doctrine 
that  a  performance,  or  tender  of  performance,  discharges  the  lien  of  the  creditor,  is  ex- 
pressly applied  by  statute  to  mortgages,  rendering  the  title  of  the  mortgagee  thenceforth 
void.  Such  is  the  case  in  New  Hampshire ;  in  which  State  the  mortgagor  may  redeem 
by  performance  or  tender,  after  as  well  as  before  the  breach  of  the  condition.  See 
Maine,  Rev.  St.  1840,  ch.  125,  §  6,  16;  Mass.  Rev.  St.  1836,  ch.  107,  §  15—20;  N. 
Hamp.  Rev.  St.  1842,  ch.  131,  §  4,  13.  And  seepost,  ch.  6,  §  1,  note.  In  those  States 
where  the  foreclosure  is  by  sale  of  the  lands,  the  sales  are  in  most  cases  directed  to  be 
made  in  the  same  manner  as  sales  on  executions  issued  on  judgments  at  law  ;  for  which 
see  ante,  tit.  14,  §  97,  note. 


598  Title  XV.     Mortgage.     Ch.  III.  5.  3—7. 

mortgagor  shall  have  no  relief,  or  equity  of  redemption,  against 
the  second  mortgagee.1  Provided,  that  this  act  shall  not  extend 
to  bar  any  widow  of  any  mortgagor  of  her  dower,  who  did  not 
legally  join  with  such  husband  in  such  mortgage,  or  otherwise 
lawfully  exclude  herself. 

4.  It  has  been  determined  on  the  construction  of  this  statute, 

1.  That  if  a  mortgage  becomes  irredeemable  by  this  statute,  it 
will  remain  so  in  the  hands  of  an  assignee,  though  assigned  in 
consideration  of  the  principal,  interest,  and  costs  due  thereon. 

2.  That  if  a  subsequent  mortgagee  redeem  such  a  mortgage,  he 
shall  hold  the  estate  irredeemable.  3.  That  if  there  are  more 
lands  in  the  second  mortgage  than  in  the  first,  that  seems  to  be 
a  case  omitted  out  of  the  statute.  But  the  adding  an  acre  or 
two  shall  not  exempt  it ;  for  that  may  be  a  contrivance  to  evade 
the  statute,  (a) 

5.  An  equity  of  redemption  is  similar,  in  many  respects,  to  a 
trust  estate  ;  for  the  mortgagee  is  entitled  to  and  holds  the  lands 
merely  as  a  pledge  for  securing  the  repayment  of  money ;  and 
in  most  other  respects  is  a  trustee  for  the  mortgagor. 

6.  Lord  Hale  says,  there  is  a  diversity  between  a  trust 
94  *  and  a  *  power  of  redemption.  For  a  trust  is  created  by  the 
contract  of  the  party,  and  he  may  direct  it  as  he  pleases. 
Therefore  one  that  comes  in,  in  the  post,  shall  not  be  liable  to  it 
without  express  mention  made  by  the  party.  But  a  power  of 
redemption  is  an  equitable  right,  inherent  in  the  land ;  and 
bound  all  persons,  in  the  post,  or  otherwise,  because  it  was  an 
ancient  right  to  which  the  party  was  entitled  in  equity,  (b) 

7.  While  the  mortgagor  is  allowed  to  retain  possession  of  the 
estate,  after  forfeiture,  he  is  in  the  same  situation  quoad  the 
mortgagee  as  he  was  before  the  mortgage  was  forfeited.  But 
quoad  strangers  his  possession,  both  before  and  after  forfeiture, 

(«)  Stafford  v.  Selby,  2  Vera.  589.  (b)  Hard.  69.    17  Ves.  133. 


1  There  is  a  provision,  similar  to  this,  in  the  statutes  of  South  Carolina;  see  Stat,  at 
Large,  Vol.  II.  p.  535,  53G  ;  and  of  Georgia;  see  Hotchkiss,  Dig.  p.  421 ;  and  of  Ten- 
nessee; Caruth.  &  Nichols.  Dig.  p.  497  ;  and  of  North  Carolina ;  LL.  N.  Car.  Vol.  I.  p. 
232.  But  they  are  all  originally  of  colonial  enactment,  probably  either  in  the  absence 
of  any  registration  laws,  or  under  the  idea  that  registration  was  not  notice  to  all  the 
world.  In  the  other  States,  this  subject  is  left  to  be  dealt  with  upon  general  law.  See 
as  to  registration,  post,  Vol.  IV.  tit.  32,  ch.  28. 


Title  XV.     Mortgage.    Ch.  III.  s.  7—9.  599 

has  always  been  considered  as  similar  to  that  of  a  cestui  que  trust, 
and  attended  with  the  same  consequences  in  equity  as  a  seisin  in 
deed  of  a  legal  estate  at  law.  And  Lord  Hardwicke  has  laid  it 
down,  that  a  person  entitled  to  any  equity  of  redemption,  who  is 
in  the  receipt  of  the  rents  and  profits,  has  such  a  seisin  and  pos- 
session of  the  equitable  estate  in  the  land,  as,  in  the  consideration 
of  a  court  of  equity,  is  equivalent  to  an  actual  seisin  of  a  legal 
estate  in  a  court  of  law.  And  in  a  modern  case  it  has  been  de- 
termined, that  an  equity  of  redemption  may  be  divested,  and  an 
adverse  possession  of  it  obtained,  (a) 

8.  It  follows  that  an  equity  of  redemption  may  be  aliened,  en- 
tailed, and  devised  by  will,  in  the  same  manner  as  a  trust  estate. 
It  is  also  descendible  to  the  heir  of  the  mortgagor.  There  may 
be  a  possessio  fratris  of  it,  and  it  will  follow  the  customary 
descent ;  for  if  lands  held  in  borough  English  are  mortgaged,  the 
equity  of  redemption  will  go  to  the  youngest  son,  to  whom  the 
legal  estate  would  have  descended.  So  in  a  mortgage  of  lands 
held  in  gavelkind,  the  equity  of  redemption  will  go  to  all  the  sons. 

9.  An  equity  of  redemption  may  be  mortgaged.  But  a  mort- 
gage of  this  kind  which  is  usually  called  a  second  mortgage,  is 
seldom  recommended  by  conveyancers,  for  two  reasons :  1.  Be- 
cause a  third  mortgagee  without  notice  may,  by  paying  off  the 
first  mortgage,  acquire  a  preference  over  the  second.1  2.  Because 
great  difficulties  may  arise  in  calling  in  the  money:  for  as  a  sec- 
ond mortgagee  has  no  legal  remedy,  he  is  driven  to  the  tedious 
and  expensive  process  of  a  suit  in  equity,  to  recover  even  his 
interest.  There  is,  however,  one  case  where  a  second  mortgage 
may  be    accepted ;    that  is,  if  he  can  get  in  a  term    for 

*  years  prior  to  the  first  mortgage ;  for  the  acquisition  of      *  75 
such    a    term  will  give  the  second    mortgagee  the  legal 
estate,  (b) 

(a)  Infra,  §  13,  Cholmondeley  v.  Clinton,  tit.  31,  c.  2,  §  07. 

(b)  Vide  infra,  c.  5.     Willoughby  v.  W.,  T.  R.  763.    S.  C.  1  Powell,  Mortg.  [493,]  5th  ed. 


1  Li  the  United  States,  where  all  deeds  are  registered,  and  registration  is  notice  to 
all  the  world,  no  mortgagee  can  lose  his  priority  but  by  his  own  Laches ;  and  puisne 
mortgagees,  without  actual  notice  of  the  prior  lien,  may  gain  priority  by  diligence  in 
registration;  liens  ordinarily  having  precedence  in  the  order  of  their  registration. 
Hence  the  rule  stated  in  the  text  can  rarely  apply.  Thompson  v.  Chandler,  7  Clieenl. 
377  ;  4  Kent.  Comm.  174—180.     See  post,  Vol.  IV.  tit.  32.  ch.  28. 


600  Title  XV.     Mortgage.     Ch.  III.  s.  10—12 


s 


10.  A  person  having  an  equity  of  redemption  in  fee  may  charge 
it  with  the  payment  of  an  annuity.  Thus  Lord  Eldon  has  said, 
that  if  a  person,  having  an  equity  of  redemption  of  an  estate 
mortgaged  in  fee,  had  granted  an  annuity,  that  would  have  been 
established  in  a  court  of  equity ;  where,  though  not  at  law,  this 
interest  is  acknowledged,  and  would  have  been  rendered  liable  to 
the  annuity,  (a) 

11.  An  equity  of  redemption  is  subject  to  curtesy;  so  that 
where  a  man  marries  a  woman  who  is  entitled  to  an  estate  that 
is  mortgaged  in  fee,  and  has  issue  by  her,  he  will  be  allowed  in 
equity  to  hold  it  during  his  life  as  tenant  by  the  curtesy. 

12.  A  woman  being  seised  of  certain  lands,  made  a  mortgage 
in  fee  of  them  for  securing  £900.  She  afterwards  married,  and 
died  without  having  paid  off  the  mortgage,  leaving  issue  a  son. 
Her  husband  claimed  to  be  entitled  to  the  lands  for  his  life,  as 
tenant  by  the  curtesy. 

The  Master  of  the  Rolls  (Sir  J.  Jekyll)  held  he  was  not  en- 
titled. 

*  On  an  appeal  to  Lord  Hardwicke,  he  observed  that  the  case 
depended  on  two  considerations:  1.  What  kind  of  interest  an 
equity  of  redemption  was  considered  to  be  in  a  court  of  equity. 
2.  What  was  necessary  to  entitle  a  husband  to  be  tenant  by  the 
curtesy.  As  to  the  first,  an  equity  of  redemption  had  always 
been  considered  as  an  estate  in  the  land ;  it  was  such  an  interest 
as  would  descend  from  the  ancestor  to  the  heir;  it  might  be 
granted,  entailed,  devised,  or  mortgaged,  and  that  equitable  in- 
terest might  be  barred  by  a  common  recovery  ;  which  proved  that 
an  equity  of  redemption  was  not  considered  as  a  mere  right,  but 
such  an  estate  whereof,  in  consideration  of  equity,  there  might 
be  a  seisin ;  or  a  devise  of  it  could  not  be  good. 

The  person  entitled  to  the  equity  of  redemption  was,  in  equity, 
considered  as  the  owner  of  the  land,  the  mortgagee  only  retain- 
ing it  as  a  pledge  or  deposit ;  and  for  this  reason  it  was,  that  a 
mortgage  in  fee  was  considered  as  personal  estate,  notwithstand- 
ing the  legal  estate  vested  in  the  heir  of  the  mortgagee,  in  point 
of  law.  The  husband  of  a  mortgagee  in  fee  could  never  be 
tenant  by  the  curtesy  of  the  mortgaged  estate,  unless  there  wa's 
a  foreclosure ;  or  the  mortgage  had  subsisted  for  so  great  a  length 

(a)  Tucker  v.  Thurstan,  17  Yes.  131. 


Title  XV.     Mortgage.     Ch.  III.  s.  12.  601 

of  time  as  the  Court  of  Chancery  thought  sufficient  to 
*  induce  it  not  to  grant  a  redemption.  As  a  mortgage  in  *96 
fee  was  only  a  chose  in  action,  if  the  ownership  of  the 
land  was  not  in  the  mortgagor,  it  was  in  nobody.  An  equity  of 
redemption  was  no  otherwise  a  right  of  action  than  every  trust; 
and  as  there  could  be  no  benefit  had  of  an  equity  of  redemption, 
but  by  snbpama  out  of  chancery,  so  was  the  case  of  every  mere 
trust  out  of  land,  which  was  considered  as  real  estate  in  chancery, 
but  could  not  be  come  at  without  a  subpoena. 

It  was  true,  a  mortgagee  was  not  barely  a  trustee  for  the  mort- 
gagor ;  but  it  was  sufficient  for  the  present  purpose  if  he  was  in 
part  a  trustee  for  the  mortgagor.  And  it  was  most  certain  that, 
as  to  the  real  estate  in  the  land,  the  mortgagee  was  only  a  trustee 
for  the  mortgagor ;  for,  until  foreclosure,  the  mortgagee  was  only 
owner,  as  a  charge  or  incumbrance,  and  entitled  to  hold  as  a 
pledge.  As  to  the  inheritance  and  real  estate  in  the  land,  the 
mortgagee  was  a  trustee  for  the  mortgagor,  until  the  equity  of 
redemption  was  foreclosed. 

Secondly,  what  was  requisite  to  entitle  the  husband  to  be  ten- 
ant by  the  curtesy  ?     Four  things,  viz.,  marriage,  issue,  death  of 
the  wife,  and  seisin.     It  was  admitted  that  the  three  first  did 
occur;  but  the  objection  relied  on  was,  that  there  was  no  actual 
seisin  of  the  wife  during  the  coverture  ;  which  was  contended  to 
be  as  necessary  in  respect  to  an  equitable  as  to  a  legal  estate. 
The  true  question  upon  this  point  was,  whether  there  was  not 
such  a  seisin  or  possession  in  the  wife,  of  the  equitable  estate  in 
the  land,  as  in  consideration  of  equity  was  equivalent  to  an  actual 
seisin  of  a  legal  estate  at  common  law.     That  in  the  considera- 
tion of  the  Court  of  Chancery,  he  was  of  opinion,  there  was  such 
a  seisin  of  the  wife,  in  the  present  case,  of  the  equity  of  redemp- 
tion.    He  had  shown  that  a  person  entitled  to  the  equity  of  re- 
demption, was  owner  of  the  land;  if  so,  there  must  be  a  seisin 
of  the  estate.     And  what  other  seisin  could  there  be  than  what 
the  husband  and  wife  had  in  the  present  case  ?  for  the  wife  was 
all  along  in  possession  until  her  death,  and  the  mortgagee  did  not 
come  into  possession  until  after  her  death,  nor  was  there  any  fore- 
closure.   And  though  the  possession  of  the  wife  was  but  as  tenant 
at  will  to  the  mortgagee,  yet  it  was,  in  equity,  a  possession  of  the 
real  owner  of  the  land,  subject  only  to  a  pecuniary  charge  on  it; 
vol.  i.  51 


602  Title  XV.     Mortgage.     Ch.  III.  s.  12—13. 

and  from  thence  it  followed,  that  there  could  not  be  a  higher 

seisin  of  an  equitable  estate. 
97  *  *  That  the  husband  might  be  tenant  by  the  curtesy  of 

this  equitable  estate,  he  cited  Williams  v.  Wray,  and 
Sweetapple  v.  Bindon ;  and  observed  that  there  had  been  two 
objections  made :  1.  That  the  husband  had  it  in  his  power  to 
have  had  seisin  in  his  wife's  lifetime,  for  he  might  have  paid 
off  the  mortgage  ;  therefore  it  was  his  own  laches  that  he  did 
not.  2.  That  a  woman  was  not  dowable  of  an  equity  of  re- 
demption. 

As  to  laches  in  the  husband,  it  was  compared  to  his  not  making 
an  entry  at  law ;  but  the  comparison  would  not  hold ;  for  it  was 
not  so  easy  to  pay  off  the  principal  and  interest  due  on  a  mort- 
gage, as  to  make  an  entry  at  law;  nor  was  it  to  be  done  so 
speedily,  for  a  mortgagee  was  in  most  cases  allowed  six  months' 
notice  to  be  paid.  In  the  case  of  Sweetapple  v.  Bindon,  the  hus- 
band might  have  brought  his  bill  in  his  wife's  lifetime,  to  compel 
the  laying  out  the  money  in  the  purchase  of  lands ;  but  though 
he  omitted  to  do  so  till  after  his  wife's  death,  yet  that  was  not 
objected  to  him  as  laches. 

As  to  the  objection  of  a  wife's  not  being  endowed  of  an  equity 
of  redemption  of  a  mortgage  in  fee,  and  that  therefore  a  husband 
ought  not  to  be  tenant  by  the  curtesy  of  an  equity  of  redemp- 
tion, this  proved  too  much ;  for  it  had  been  determined  that  a 
wife  shall  not  be  endowed  of  a  trust  estate,  yet  that  a  husband 
shall  be  tenant  by  the  curtesy  of  it.  The  argument  from  dower 
to  curtesy  failed  in  this  case.  Perhaps  it  would  be  hard  to 
find  a  sufficient  reason  how  it  came  to  be  so  determined  in  one 
case,  and  not  in  the  other ;  but  it  was  safe  to  follow  former 
precedents,  and  what  were  settled  and  established ;  and  if  such 
precedents  should  be  departed  from,  he  held  it  fit  rather  that  the 
wife  should  be  allowed  dower  of  a  trust  estate,  and  not  that  cur- 
tesy of  a  trust  estate  should  be  taken  away.  Decreed  that  the 
husband  was  entitled  to  curtesy,  (a) 

13.  A  widow,  however,  is  not  allowed  to  have  dower  out  of  an 
equity  of  redemption  of  a  mortgage  in  fee  made  before  the  mar- 
riage ;   upon  the  principle  that  it  was   analogous   to   a  trust 

(a)  Casburne  v.  Inglis,  2  Ab.  Eq.  728.  1  Atk.  G03.  2  Jacob  &  Walker's  Bep.  App.  No.  2. 
Tit.  5,  c.  2. 


Title  XV.     Mortgage.     Ch.  III.  5.  13—14.  603 

estate.f     And  however  severe  this  doctrine  may  seem,  yet  it  was 
solemnly  confirmed  in  the  following  case,  (a) 1 

*14.  Abraham  Dixon,  being  seised  in  fee  of  considera-  *98 
ble  estates,  died  in  1782  without  issue,  leaving  Ann  Dixon, 
the  plaintiff,  his  widow,  having  devised  his  estates  to  trustees 
upon  several  trusts.  Abraham  Dixon,  not  having  in  his  lifetime 
made  any  settlement  or  other  provision  for  his  wife,  in  lieu  or  bar 
of  dower,  and  she  not  having  done  any  act  to  bar  herself  thereof, 
filed  her  bill  against  the  trustees,  stating  the  above  facts,  claiming 
dower  out  of  all  the  testator's  real  estate,  and  praying  to  be  let 
into  the  receipt  of  one  third  part  of  the  rents  and  profits  thereof. 

To  this  bill  the  trustees  answered,  that  the  testator  had  bor- 
rowed a  large  sum  of  money  upon  mortgage  ;  and  for  securing 
the  repayment  thereof,  had,  previous  to  his  marriage  with  the 
plaintiff,  conveyed  the  premises  to  the  mortgagee  in  fee,  subject 
to  a  proviso  for  redemption  ;  that  the  legal  estate  in  the  premises 
being,  by  this  mortgage,  absolutely  vested  in  the  mortgagee, 
previous  to  and  at  the  time  of  the  marriage  of  the  testator  with 
the  plaintiff,  and  not  being  at  any  time  afterwards  reconveyed  to 
him,  but  remaining  vested  in  the  mortgagee,  at  the  time  of  his 
death  ;  and  he  being  therefore  only  entitled  to  the  equity  of  re- 
demption thereof,  at  the  time  of  his  marriage,  and  at  all  times 
thereafter,  till  the  time  of  his  death  ;  the  plaintiff  was  not  at  any 
time  dowable  in  or  out  of  the  said  premises,  either  at  law  or  in 
equity. 

On  the  hearing,  the  plaintiff  could  have  proved  by  witnesses 
that  the  testator,  her  husband,  understood  and  declared,2  that  after 
his  death  his  widow  would  be  entitled  to  dower  out  of  his  real 

(«)  Tit.  12,  c.  2. 


[t  By  the  Stat.  3  &  4  Wm.  4,  c.  105,  §  2,  14,  statute  widows,  married  after  the 
1st  of  January,  1834,  are  entitled  to  dower  out  of  equitable  estates.] 

1  See  ante,  tit.  6,  ch.  2,  §  10,  note;  lb.  §  25,  note.  See  also  Mr.  Rand's  note  to 
2  Pow.  on  Mort.  699. 

2  Mr.  Powell,  in  the  third  edition  of  his  book  on  Mortgages,  Vol.  II.  p.  095,  a,  (by 
Coventry  &  Rand,)  says,  that  he  has  since  been  informed  by  the  gentleman  who 
drew  the  will  in  this  case,  that  no  such  declaration  could  have  been  made;  and 
that  the  question  alluded  to,  as  put  by  Mr.  Dixon  to  the  drawer  of  the  will,  was 
not  put  at  the  time  of  the  making,  nor  at  any  other  time  in  his  recollection  ;  ho 
having  drawn  it  without  the  knowledge  of  any  mortgage  or  other  charge  affecting  the 
estate. 


604  Title  XV.     Mortgage.     Ch.  III.  s.  14. 

estates;  that  he  made  his  will  under  that  idea;  and  it  could  have 
been  also  proved,  if  relevant,  by  the  person  who  drew  it ;  Mr. 
Dixon  having  put  the  question  to  him,  whether  Mrs.  Dixon  would 
not  be  entitled  to  dower,  to  which  he,  being  at  that  time  igno- 
rant of  the  mortgage,  answered,  that  she  certainly  wonld.  The 
will  itself  sufficiently  spoke  the  idea  ;  for  the  testator  bequeathed 
to  the  plaintiff,  by  the  name  of  his 'dear  wife  Ann  Dixon,  his 
coach  and  harness,  and  a  pair  of  horses,  together  with  as  much 
of  his  plate  as  she  should  think  proper,  not  exceeding  the  sum 
of  <£60  ;  which  things  she  could  have  no  occasion  for,  if  she  had 
not  dower  to  support  her. 

The  claim  of  the  widow  was  supported  on  three  grounds: 

1st,  The  general  law.     2dly,  The  distinction  between  a 

99  *      mere  *  trust  and   an   equity  of  redemption.     3dly,    The 

authorities  in  favor  of  dower,  under  circumstances  not 

more  favorable  than  those  attending  this  case. 

Under  the  first  of  these  heads  it  was  observed,  that  dower  was 
a  right  of  the  first  attention  and  most  sacred  preservation  at  the 
common  law.  It  was  a  right,  not  only  founded  in  our  law,  but 
a  right  consonant  to  the  first  principles  or  laws  of  morality  and 
equity,  as  springing  from  the  moral  obligation  a  man  was  under 
to  make  a  provision  for  his  wife.  And  accordingly  it  was  in  a 
variety  of  cases,  aided  and  extended  beyond  its  strict  legal  limits, 
by  the  interposition  of  courts  of  equity,  in  removing  trust  terms, 
and  other  obstructions  to  it,  in  certain  cases,  which  would  stand 
in  the  way  of  it  at  common  law.  This  proved  it  to  be  a  right 
not  merely  confined  to  the  common  law,  but  a  right  recognized, 
protected,  and  aided  in  equity ;  and  which,  so  far  as  it  was  the 
subject  of  relief  in  equity,  was  an  equitable  right.  This  was  the 
predicament  in  which  it  stood  in  the  cases  of  Dudley  v.  Dudley, 
Wray  v.  Williams,  and  the  other  cases  in  which  it  had  been 
decided  that  a  dowress  should  have  the  benefit  of  a  trust  term 
attendant  on  the  inheritance,  as  against  the  heir,  (a) 

Considering  it,  therefore,  as  an  equitable  right,  it  well  might 
be  a  wonder  how  it  came  about  that  a  widow  should  not  be 
entitled,  against  the  heir,  to  dower  of  an  equitable  inheritance. 
Some,  indeed,  had  confined  the  rule  of  her  not  being  so  to  the 
cases  where  the  trust  was  created  by  the  husband  himself.     This 

(«)  Tit.  12,  c.  3. 


Title  XV.     Mortgage.     Ch.  III.  s.  14.  605 

had  been  the  opinion  of  the  Master  of  the  Rolls  in  Banks  v.  Sut- 
ton, (a)  However,  this  opinion  had  been  overruled ;  and  it  seemed 
to  be  a  settled  point,  that  a  widow  was  not  dowable  of  a  direct 
proper  trust. 

This  naturally  led  to  the  second  head  of  argument  in  favor  of 
the  widow ;  namelyy^the  distinction  between  a  mere  trust,  that 
was  an  use,  as  it  was  styled  at  common  law,  and  an  equity  of 
redemption.  The  former  was  regarded  at  common  law  as  quite 
a  distinct  interest  from  the  legal  estate,  to  which  the  right  of 
dower  was  annexed.  It  cf  course  did  not  involve  in  it  that  right ; 
if  it  had,  there  would  have  been  two  opposite  rights  of  dower  in 
the  same  lands  at  the  same  time  ;  as  the  widow  of  both  the 
trustee  and  the  cestui  que  trust  would  have  been  entitled  to  dower. 
For  the  widow  of  the  trustee  was  clearly  entitled  at  common 
law;  and  when  the  Court  of  Chancery  interposed  to 
*  prevent  the  legal  title  of  the  widow  of  the  trustee,  it  *  100 
seemed  extraordinary  that  it  did  not,  in  its  place,  substi- 
tute an  equitable  one  of  the  cestui  que  trust.  However,  these 
sorts  of  trusts  being  the  creatures  of  the  parties  themselves,  what- 
ever were  the  legal  incidents  or  privileges  they  wanted,  might 
have  been  supposed  to  have  been  voluntarily  relinquished  and 
abandoned  by  the  parties  creating  those  trusts. 

But  it  was  otherwise  with  regard  to  an  equity  of  redemption  : 
that  was  not  any  interest  created  or  reserved  by  or  between  the 
parties,  beyond  the  express  time  of  redemption ;  it  was  a  mere 
creature  of  a  court  of  equity  itself,  founded  on  this  principle, 
that  as  a  mortgage  was  originally  nothing  more  than  a  pledge  or 
security  to  the  mortgagee  for  his  money,  it  was  but  natural 
justice  between  man  and  man  to  consider  the  original  ownership 
of  the  lands  as  still  residing  in  the  mortgagor,  subject  to  the 
legal  title  of  the  mortgagee,  so  far  only  as  such  legal  title  was 
requisite  to  the  end  of  his  security  ;  and  accordingly  the  title  of 
the  mortgagee  was  not  treated  by  equity  as  any  thing  beyond 
that  point.  His  beneficial  interest,  though  the  mortgage  was  in 
fee,  was  considered  only  as  personal  estate  ;  he  was  not  permitted 
to  grant  leases,  or  exercise  any  other  act  of  ownership,  to  the 
prejudice  of  the  mortgagor,  to  whom  he  was  even  accountable 
for  the  profits  of  his  estate.     His  widow  was  not  permitted  to 

(a)  Tit.  12,  c.  2. 

51* 


606  Title  XV.     Mortgage.     Ch.  III.  s.  14. 

claim  dower ;  nor  could  he,  or  those  claiming  under  him,  avail 
themselves  of  several  other  privileges  and  incidents  attending 
real  property. 

It  seemed  to  be  the  regular  consequence  of  the  doctrine 
adopted  by  the  courts  of  equity,  in  regard  to  mortgages,  by  con- 
sidering them  strictly  and  merely  in  the  nature  of  securities  for 
the  mortgage  money,  and  entitling  the  mortgagee  to  no  other  of 
the  incidents  or  privileges  of  ownership  in  the  lands,  than  what 
was  requisite  for  the  end  of  such  security ;  that  all  such  privi- 
leges and  incidents  of  ownership  of  the  lands  as  were  not  con- 
sidered as  becoming  vested  in  the  mortgagee  for  the  purpose  of 
his  security,  should  be  held  to  remain  in  the  mortgagor ;  or,  in 
other  words,  that  he  should  to  all  purposes,  not  prejudicial  to  the 
mortgagee,  be  considered  as  the  complete  owner  of  the  mortgaged 
lands. 

And  accordingly  this  was  found  to  be  the  established  doctrine 
in  several  instances,  when  only  volunteers  were  interested; 
101*  such  *as  revocations  under  powers,  and  revocations  of  de- 
vises ;  as  in  the  cases  of  Thorne  v.  Thorne,  and  Hall  v. 
Dunch,  and  other  like  cases,  (a)  That  in  the  case  of  Lincoln  v. 
Eolle,  the  doctrine  was  expressly  recognized,  and  admitted  on 
both  sides  ;  because  in  equity  a  mortgage  did  not  make  the 
estate  another's,  and  because  a  mortgage  was  not  an  inheritance, 
but  a  personal  estate  ;  and  there  seemed  no  reason  in  the  world 
why  these  general  incidents  of  complete  ownership  should  be 
saved  in  favor  of  a  devisee,  or  other  volunteer,  and  not  in  favor 
of  a  wife,  whose  claims  of  dower  stood  upon  the  strongest 
grounds  of  moral  and  equitable  right ;  and  who  was  in  many 
instances  considered  as  entitled  to  relief  in  equity,  in  regard  to 
an  intended  provision,  when  a  devisee  or  other  volunteer  was 
not. 

Agreeable  to  this  doctrine  was  the  case  of  Banks  v.  Sutton, 
where  it  was  decreed  in  favor  of  the  claim  of  dower  out  of  an 
equity  of  redemption  of  a  mortgage  in  fee ;  which  decision  was 
founded  on  a  variety  of  authorities  and  reasons  delivered  by  the 
Master  of  the  Rolls  ;  all  which  were  equally  forcible  in  the  pres- 
ent case.  That  the  case  of  Banks  v.  Sutton,  was  directly  in  point 
of  the  present  question ;  for  though  the   Master  of  the  Rolls 

(a)  Tit.  32,  c.  14.     Tit.  38,  c.  6.     Show.  Pari.  Ca.  154. 


Title  XV.     Mortgage.     Ch.  III.  5.  14.  607 

would  not  take  upon  himself  to  determine  the  question,  in  re- 
gard to  dower,  out  of  a  mere  trust,  created,  not  by  the  husband, 
but  by  some  other  person,  with  no  time  limited  for  conveying 
the  legal  estate ;  and  avoided  this  point  by  shifting  his  ground  to 
that  of  the  husband's  being  entitled,  under  the  express  direction 
of  the  will  under  which  he  claimed,  to  have  the  estate  conveyed 
to  him  at  the  age  of  twenty-one,  which  circumstance,  under  the 
application  of  a  common  principle  of  equity,  of  considering  that 
as  done  which  ought  to  have  been  done  of  course  in  equity,  let 
the  widow  into  the  same  degree  of  title  as  she  would  have  had  if 
the  trustees  had  conveyed  the  estate  to  her  husband  at  the  time 
directed.     And  as  the  principle  on  which  the  Master  of  the  Rolls 
got  rid  of  the  first  point,  did  not  apply  to  this,  he  accordingly 
found  himself  constrained,  instead  of  changing  his  ground  as 
before,  to  enter  into  a  strict  examination  of  it,  and  meet  the  ob- 
jections to  dower  with  authorities,  inferences,  and  general  reason- 
ing ;  and  through  them  to  come  to  a  professed  decision  of  the 
point,  as  he  expressly  did,  when  he  said — "  He  did  not  know  or 
could  find  any  instance  where  dower  of  an  equity  of  redemption 
was  controverted    and    adjudged   against   the    dowress." 
And  *  as  there  were  authorities  in  cases  less  favorable,  he     *  102 
therefore  declared  that  the  widow  of  the  person  entitled 
to  the  equity  of  redemption  of  the  mortgage  in  question,  which 
was  a  mortgage  in  fee,  had  a  right  of  redemption  ;  and  decreed 
her  the  arrears  of  her  dower,  from  the  death  of  her  husband ;  she 
allowing  the  third  of  the  interest  of  the  mortgage-money  unsatis- 
fied at  that  time  :  that  an  authority  more  directly  in  point  than 
this  could  not  be  expected. 

And  though  the  subsequent  case  of  the  Attorney- General  v. 
Scott,  (a)  before  Lord  Talbot,  in  which  the  widow  was  denied 
dower,  was  generally  considered  as  an  authority  contrary  to  and 
superseding  that  of  Banks  v.  Sutton,  yet  such  a  conclusion 
seemed  too  hasty,  as  the  two  cases  appeared  to  differ  materially ; 
for  in  that  of  the  Attorney- General  v.  Scott,  although  there  was 
a  mortgage,  yet  the  question  did  not  turn  upon  that,  because  the 
legal  estate  was  outstanding  in  trustees,  in  whom  it  was  vested 
antecedent  to  such  mortgage  ;  consequently  the  decision  in  that 
case  was  on  a  direct  proper  trust,  not  on  a  mere  equity  of  re- 

(a)  Tit.  12,  c.  2. 


608  Title  XV.     Mortgage.     Ch.  III.  s.  14—17 


s 


demption.  The  difference  between  a  direct  trust  and  an  equity 
of  redemption,  and  between  the  claim  of  a  widow,  and  that  of  a 
devisee,  or  mere  volunteer,  was  strongly  insisted  upon  ;  and  the 
distinction  between  this  case,  and  that  of  a  claim  of  dower 
against  a  purchaser,  fully  enforced. 

The  Lords  Commissioners,  Loughborough,  Ashhurst,  and 
Hotham,  said,  that  the  case  of  an  estate  by  the  curtesy  in  a 
trust  was  the  anomalous  case,1  not  the  rule ;  that  the  wife  should 
not  have  dower.  And  this  point  was  so  much  settled,  that  it 
would  be  wrong  to  discuss  it  much.  The  bill  was  dismissed,  but 
without  costs,  the  defendant  not  praying  them,  (a)  1 

15.  A  widow  was,  however,  entitled  to  dower  out  of  an  equity 
of  redemption  of  a  mortgage  for  a  term  for  years;  because  in  that 
case  the  husband  was  seised  of  the  freehold  and  inheritance. 
And  where  a  mortgage  of  this  kind  was  satisfied,  the  Court  of 
Chancery  gave  the  dowress  relief,  by  removing  the  term  :  but  if 
the  mortgage  was  not  satisfied,  then  the  dowress  must  keep 
down  a  third  of  the  interest,  or  pay  off  a  third  of  the  prin- 
cipal, (b)  2 

16.  The  statute  13  Eliz.  c.  4,  which  enacts  that  all  the  lands, 
tenements,  and  hereditaments  of  persons  who  are  accountants  to 

the  crown,  shall  be  liable  to  the  payment  of  crown  debts, 
103  *     *  extends  to  equities  of  redemption ;  and  by  the  statute 

25  Geo.  III.  c.  35,  they  may  be  sold  under  an  extent  by 
the  Court  of  Exchequer,  (c) 

17.  An  equity  of  redemption  of  a  mortgage  in  fee  is  not  assets 
at  common  law  ;  for  the  legal  estate  not  being  in  the  heir,  he  may 
plead  Hens  per  descent?     As  to  the  question,  whether  an  equity 

(a)  Dixon  v.  Saville,  1783.     2  Powell.  Mortg.  37,  (693,  Coventry's  6th  ed.) 

(b)  2  P.  Wms.  716.        (c)  Tit.  1,  §  68.     Rex  v.  Delamotte,  Forr.  Rep.  in  Excli.  162.  Tit.  14. 


1  See  ante,  tit.  6,  ch.  2,  §  25,  note. 

2  This  rule  is  now  exploded,  and  the  more  reasonable  rule  established,  that  a  tenant 
for  life  is  bound  to  contribute  to  the  removal  of  an  incumbrance,  only  in  proportion  to 
the  benefit  he  derives  from  its  removal.     See  post,  ch.  4,  §  54,  note. 

3  This  is  now  altered  in  England,  by  the  statute  3  &  4  Wm.  4,  c.  104.  In  the 
United  States,  where  all  the  property  of  the  deceased  debtor,  subject  to  the  rights  of 
the  widow,  is  liable  as  a  trust  fund  for  the  payment  of  his  debts,  the  equity  of  redemp- 
tion goes  into  the  assets,  to  be  administered  by  the  executor  or  administrator.  In  sev- 
eral of  the  States  it  is  so  declared  by  express  statutes;  but  it  seems  also  necessarily 
to  result  from  the  principle  above  stated.  See  Massachusetts,  Rev.  St.  1836,  ch.  65,  §  15  ; 
Maine,  Rev.  St.  1840,  ch.  125,  §  13;   Vermont,  Rev.  St.  1839,  ch.  48,  §  23;  Michigan, 


Title  XV.     Mortgage.     Ch.  III.  s.  17—21.  609 

of  redemption  was  assets  in  equity,  the  courts  reasoned  by  anal- 
ogy from  trust  estates,  which  not  being  then  assets,  they  held 
that  equities  of  redemption  were  not  assets.  But  when  it  was 
enacted  by  the  Statute  of  Frauds  that  trust  estate^should  be 
assets,  the  Court  of  Chancery  held  that  an  equity  of  redemption 
should  be  assets  in  equity,  (a) 

18.  Sir  C.  Cox,  having  a  term  for  years,  made  a  mortgage 
thereof,  and  died  possessed  of  the  equity  of  redemption,  leaving 
greater  debts  than  his  estate  would  extend  to  pay.  The  question 
was,  whether  this  mere  equity  of  redemption  was  only  equitable 
assets,  and  distributable  equally  pro  rata  among  all  the  creditors, 
without  regard  to  the  degree  or  quality  of  their  debts,  or  whether 
it  should  be  applied  in  a  course  of  administration ;  in  which 
last  case  the  bond  creditors  would  swallow  up  all  the  assets, 
without  leaving  any  thing  for  those  by  simple  contract.  Sir  J. 
Jekyll  delivered  his  opinion,  that  this  equity  of  redemption  was 
equitable  assets  only,  the  mortgage  being  forfeited  at  law,  and 
the  whole  estate  thereby  vested  in  the  mortgagee  ;  so  that  it  was 
barely  an  equitable  interest,  (b) 

19.  In  a  subsequent  case,  Lord  Hardwicke  also  held,  that  an 
equity  of  redemption  of  a  leasehold  estate  was  equitable  assets. 
But  in  a  modern  case,  Lord  Loughborough  said,  that  an  equity  of 
redemption  was  not  equitable  assets  as  against  judgment  credi- 
tors, who  had  a  right  to  redeem,  (c) 

20.  It  is  held,  that  an  equity  of  redemption  in  fee  is  not  assets 
to  pay  simple  contract  debts  ;  for  it  cannot  be  reached,  at  law, 
by  any  creditors.1  It  is,  notwithstanding,  made  assets  in  equity ; 
but  only  to  pay  debts  of  that  description  to  which  the  land 
would  have  been  liable,  if  it  had  been  a  legal  estate. 

21.  An  equity  of  redemption  of  a  trust  estate  is  equitable  as- 
sets, because  creditors  can  only  attach  this  kind  of  property  in  a 
court  of  equity,  (d) 

(a)  2  Vera.  61.     2  Atk.  294.     Tit.  12,  c.  2.       (6)  Creditors  of  Sir  C.  Cox,  3  P.  Wms.  341. 

(c)  Hartwell  v.  Chitters,  Amb.  308.     4  Ves.  542. 

(d)  Plunkett  v.  Penson,  2  Atk.  290.  (1  Ves.  436.  But  see  Sharpe  v.  E.  of  Scarborough, 
4  Ves.  538.) 


Rev.  St,  1837,  p.  285,  286  ;  Ohio,  Rev.  St.  1841,  ch.  47,  §  67,  68 ;  Indiana,  Rev.  St.  1843, 
ch.  30,  §  464.     See  infra,  §  38,  note  (1.) 

1  Altered  in  England,  by  Stat.  3  &  4  Wm.  4,  c.  104. 


610  Title  XV.     Mortgage.     Ch.  III.  s.  22—26. 

104*  *22.  When  a  person  seised  in  fee  makes  a  mortgage 
by  a  demise  for  years,  the  equity  of  redemption  is  assets 
at  law;  because  the  reversion,  which  attracts  the  redemption, 
being  asse(p  at  law,  the  equity  of  redemption  ought  to  be  so 
too.  And  a  creditor  may  have  judgment  at  law,  with  a  cessat 
executio  during  the  term,  (a) 

23.  An  equity  of  redemption  is,  however,  not  extendible,  by  a 
judgment  creditor,  with  or  without  the  aid  of  the  Statute  of 
Frauds,  (b) x 

24.  It  was  formerly  held,  that  where  an  equity  of  redemption 
was  devised  to  an  executor  for  payment  of  debts,  it  then  became 
legal  assets ;  because  the  devise  of  it  to  the  executor  showed  the 
intention  of  the  testator,  that  it  should  be  applied  like  other 
assets.  But  where  the  equity  of  redemption  was  devised  to  trus- 
tees, upon  trust  to  pay  debts,  it  was  equitable  assets,  (c) 

25.  This  doctrine  has  been  altered  ;  and  it  is  said  to  be  now 
established,  that  a  devise  to  a  mere  executor  shall  bear  the  same 
construction  as  a  devise  to  a  trustee :  that  there  is  no  reason  to 
suppose  the  testator's  meaning  to  be  different  in  the  one  instance 
from  the  other :  that,  even  in  the  case  of  a  mere  power,  on  the 
part  of  the  executor,  to  sell,  the  descent  seems  to  be  broken,  in- 
asmuch as  the  vendee  is  in  by  the  devisor ;  but  that,  whether  the 
descent  in  such  case  be  broken  or  not,  the  assets  shall  be  equally 
equitable.  In  short,  that  if  the  real  estate  be,  by  any  means, 
given  to  the  executor,  the  produce  of  it,  when  sold,  shall  not  be 
applied  in  a  course  of  administration,  but  be  distributed  as  equity 
prescribes,  (d) 

26.  An  equity  of  redemption  being  alienable  and  devisable,  it 
follows  that  all  those  who  derive  an  interest  from,  the  mortgagor 
by  purchase  or  devise,  may  redeem  the  mortgage.     Where  an 

(a)  2  Atk.  294.  (&)  Lyster  v.  Dolland,  1  Ves.  jun.  431.     See  4  Mad.  503. 

(c)  Girling  v.  Lee,  1  Vern.  63. 

(<Z)  Toller,  Exec.  B.  3,  c.  8,  p.  414,  (6th  ed.)  Newton  v.  Bennet,  1  Bro.  C.  C.  137,  138. 
Deg  v.  Deg,  2  P.  Wms.  412.  Walker  v.  Meager,  lb.  552.  3  lb.  342.  2  Atk.  290.  2  Fonbl. 
Eq.  399,  n.  (4th  ed.)     Harg.  Co.  Lit.  113,  a.  n.  2. 

1  The  equity  of  redemption,  in  the  United  States,  is  by  statutes  made  liable  to  exe- 
cution for  the  debts  of  the  mortgagor  or  his  assignee.  See  4  Kent,  Comm.  160,  161. 
Ante,  $  17,  note.  [The  first  mortgagee  of  land  may  sell  on  execution,  to  satisfy  the 
mortgage  debt,  the  mortgagor's  right  to  redeem  a  second  mortgage  of  the  same  land. 
Johnson  v.  Stevens,  7  Cush.  431.] 


Title  XV.     Mortgage.     Ch.  III.  5.  26—29.  611 


■s 


equity  of  redemption  is  not  disposed  of  by  the  mortgagor  in  his 
lifetime,  or  by  his  will,  his  heir  becomes  entitled  to  it.  And  it 
has  been  stated  that,  if  the  descent  be  customary,  the  equity  of 
redemption  will  go  according  to  the  custom.  [It  may  be  laid 
down  as  a  general  rule  that  any  person  having  an  interest  in  or 
lien  upon  the  land  may  redeem.]  (a) 

27.  Any  subsequent  incumbrancer  may  redeem  a  mortgage ; * 
such  as  a  judgment  creditor.     But  if  the  mortgage  be  of  a  term 
in  gross,  the  judgment  creditor  must  sue  out  a  writ  of 
execution,  *  before  he  brings  his  bill  to  redeem  ;  for,  till     *  105 
execution,  a  judgment  is  not  a  lien  on  a  term  for  years,  (b) 

28.  A  creditor  by  statute  has  been  allowed  to  redeem  a  mort- 
gage, after  a  decree  of  foreclosure. 

29.  A  bill  was  brought  by  the  cognizee  of  a  statute,  acknowl- 
edged by  the  mortgagor,  to  redeem  a  mortgage,  after  a  decree  of 
foreclosure.  The  defendant  pleaded  the  decree  of  foreclosure ; 
that  the  statute  was  acknowledged  after  the  mortgagee's  bill  was 
filed ;  that  the  mortgagee  had  no  notice,  and  had  made  proper 

(a)  1  Russ:  &  M.  741. 

(b)  Greswold  v.  Marsham,  2  Cha.  Ca.  170.   Stonehewer  v.  Thompson,  2  Atk.  440.  (Brineker- 
hoff  v.  Brown,  4  Johns.  Ch.  R.  671.)     Shirley  v.  Watts,  3  Atk.  200. 


1  Thus,  a  subsequent  mortgagee  may  redeem.  Thompson  v.  Chandler,  7  Greenl.  377. 
So,  the  widow  of  the  mortgagor  ;  Messiter  v.  Wright,  16  Pick.  151 ;  one  of  several  of  his 
grantees  ;  Allen  v.  Clark,  17  Pick.  47;  Taylor  v.  Porter,  7  Mass.  315;  or,  his  judgment 
creditor,  if  he  can  show  a  good  subsisting  mortgage,  whicli  the  mortgagor  could  go  into 
a  court  of  equity  and  redeem.  Tucker  v.  White,  2  Dev.  &  Bat.  Eq.  E.  289.  The  rule 
is,  that  the  persons  entitled  to  redeem  in  equity  are  those  who,  within  the  time  limited 
by  the  mortgage  deed,  would  have  been  entitled  to  redeem  at  law.  Skeffington  v. 
Whitehurst,  3  Y.  &  Coll.  2. 

The  doctrine  in  the  text  is  founded  on  this  general  principle,  that  the  equity  of 
redemption  is  a  subsisting  estate,  and  interesi  in  the  lands,  not  only  in  the  hands  of  the 
heirs,  devisees,  assignees,  and  personal  representatives,  strictly  so  called,  of  the  mort- 
gagor, but  also  in  the  hands  of  any  other  persons  who  have  acquired  any  interest  in  the 
lands  mortgaged  by  operation  of  law.  or  otherwise,  in  privity  of  estate.  2  Story,  Eq. 
Jur.  <§  1023 ;  4  Kent,  Comm.162 — 164.  [Farnum  v.  Metcalf,  8  Cush.46.  The  grantee 
of  an  estate  upon  condition,  who  mortgages  to  his  grantor,  and,  after  a  foreclosure  by 
the  mortgagee,  files  his  bill  to  redeem,  a  breach  of  the  condition  having  occurred,  will 
be  allowed  to  redeem  only  upon  removing  all  the  incumbrances  specified  in  the  mort- 
gage, and  performing  the  condition  annexed  to  his  deed.  Stone  v.  Ellis,  9  Cash.  95. 
An  assignee  of  a  term  of  years  in  land  previously  mortgaged,  may,  to  protect  his  estate, 
redeem  such  mortgage,  though  the  leasehold  premises  are  but  part  of  the  estate  mort- 
gaged ;  and  the  party  redeeming  has  a  right  to  an  assignment  of  the  mortgage,  and  if 
it  be  recorded,  to  an  acknowledgment  of  the  assignment.  Averill  v.  Taylor,  4  Seidell, 
N.  Y.  44.] 


612  Title  XV.     Mortgage.     Ch,  III.  s.  29—34. 

parties  at  the  filing  of  his  bill.  Mr.  Vernon  said,  if  an  incum- 
brancer lies  by,  and  suffers  the  mortgagee  to  obtain  a  decree  of 
foreclosure,  though  he  is  not  bound  by  the  decree,  because  not 
made  a  party,  yet,  if  he  afterwards  brings  a  bill  to  redeem,  he 
shall  not  be  at  liberty  to  except  to  the  accounts  stated  by  the 
Master,  but  shall  pay  the  whole  upon  his  redemption.  Lord 
Harcourt  said, — "  This  is  a  recent  foreclosure ;  let  the  plaintiff 
redeem,  upon  payment  of  what  is  due,  with  costs."  (a) 

30.  In  the  case  of  a  mortgage  for  a  term  of  years,  if  the  widow 
be  endowed  of  a  third  of  the  reversion,  she  may  redeem  the 
mortgage,  and  hold  the  lands  till  she  is  repaid  two  thirds  of  the 
money  she  has  advanced. 

31.  A  ivoman  entitled  to  a  jointure  out  of  lands  that  are  in 
mortgage,  may  also  redeem,  as  appears  from  a  case  which  has 
been  already  stated,  (b) 

32.  A  tenant  by  the  curtesy  may  also  redeem  a  mortgage,  and 
hold  the  lands  till  he  is  repaid  what  he  had  advanced,  (c) 

33.  The  crown  may  redeem  a  mortgage  on  an  estate  forfeited 
by  the  outlawry  of  the  mortgagor  for  high  treason. 

34.  Sir  Roger  Strickland,  having  made  a  mortgage  of  his 
estate,  was  afterwards  indicted  and  outlawed  for  high  treason. 
The  Attorney-General  thereupon  exhibited  a  bill  in  the  Court  of 
Exchequer,  to  discover  the  consideration  of  the  mortgage,  what 
was  due  upon  it,  praying  that  the  crown  might  redeem,  if  any 
thing  was  due.  The  Court  directed  several  issues  to  be  tried 
relative  to  the  consideration  of  the  mortgage.  Upon  trial,  ver- 
dicts were  found  in  favor  of  the  mortgagee ;  but  these  verdicts 

were  so  general  that  application  was  made,  on  behalf  of  the 
106  *     crown,  for  a  new  *  trial.     This  was  not  only  refused,  but 

the  Court,  on  hearing  the  cause  upon  the  equity  reserved, 
ordered  the  information  to  stand  dismissed.  On  an  appeal  to  the 
House  of  Lords,  this  decree  was  reversed,  and  the  Attorney- 
General,  on  behalf  of  the  crown,  was  admitted  to  redeem,  (d) 

[So  also  in  Sir  S.  Lovell's  case  it  was  decided  that  the  assignee 
of  the  crown  might  redeem.f  ] 

(a)  Crisp  v.  Heath,  7  Yin.  Ab.  52.  (l>)  Howard  v.  Harris,  c.  1,  §  24. 

(c)  See  Casburne  v.  Inglis,  2  Jac.  &  Walk.     Appdx.  II.  194. 

(d)  Att.-General  v.  Crofts,  4  Bro.  Pari.  Ca.  136.     Vide  Pawlett  v.  Att.-Gen.,  Hard.  465. 

[t  Sir  S.  Lovell's  case,  1  Salk.  85,  cited  1  Eden,  210.     See  also  2  Atk.  223.] 


Title  XV.     Mortgage.     Ch,  III.  s.  35—38.  613 

35.  It  is  a  maxim  that  lie  who  will  have  equity  must  himself 
do  equity  ;  in  consequence  of  which  it  has  been  long  established, 
that  when  a  mortgagor  requires  the  redemption  of  his  estate,  he 
must  in  his  turn  allow  full  equity  to  the  mortgagee,  (a) 

36.  A  person  borrowed  money  upon  mortgage,  and  afterwards 
borrowed  more  money  from  the  same  person  upon  bond ;  the 
mortgage  was  forfeited.  The  Court  said,  although  there  was  no 
special  agreement  proved  in  the  case  that  the  land  should  stand 
as  a  security  for  the  bond  debt,  yet  the  mortgagor  should  not  re- 
deem without  paying  both,  (b) l 

37.  This  doctrine  was,  however,  soon  altered ;  and  it  is  said 
by  Mr.  Vernon,  and  agreed  to  by  the  Court,  in  Trin.  1715,  that  if 
a  man  had  a  debt  owing  to  him  by  mortgage,  and  another  on 
bond  from  the  same  person,  he  could  not  tack  them  together 
against  the  mortgagor ;  but  would  be  let  in  to  a  redemption  on 
payment  of  the  mortgage  money  only,  (c) 

38.  [But  in  order  to  avoid  circuity  of  action,  the  law  is  other- 
wise with  respect]  to  the  heir  at  law  of  the  mortgagor,  who  cannot 
redeem  a  mortgage  made  by  his  ancestor,  without  paying  off  the 

{a)  St.  John  v,  Holford,  1  Cha.  Ca.  97. 

(6)  Baxter  v.  Manning,  1  Vera.  244.  (See  1  Pow.  on  Mortg.  338,  6th  ed.  Powis  v.  Corbet, 
3  Atk.  556.    Scripture  v.  Johnson,  3  Conn.  E.  211.    Post,  c.  5,  §  28.) 

(c)  Challis  v.  Casborn,  Prec.  in  Cha.  407.  Archer  v.  Suatt,  2  Stra.  1107.  2  Ves. 
jun.  376. 


1  The  doctrine  of  tacking,  though  now  established  in  England,  is  there  taken  with 
this  most  important  qualification,  that  the  party,  who  seeks  to  avail  himself  of  it,  is  a 
bona  fide  purchaser,  without  notice  of  the  prior  incumbrance,  at  the  time  when  lie  took 
his  original  security;  for  if  he  then  had  such  notice,  he  has  not  the  slightest  claim  to 
the  protection  or  assistance  of  a  Court  of  Equity.  But  in  the  United  States,  tacking 
is  never  allowed,  as  against  mesne  incumbrances  which  are  duly  registered ;  for  the 
plain  reason  that  registration  under  the  registry  acts,  which  exist  in  all  the  States,  is 
held  to  be  constructive  notice  to  all  persons  ;  and  the  acts  themselves,  some  in  express 
terms,  and  all  by  clear  implication,  declare  the  priority  to  he  fixed  by  the  registration. 
See  1  Story,  Eq.  Jur.  §  421  ;  4  Kent,  Comm.  177—179.  So  the  latter  point  is  held 
under  the  Irish  registry  act.  Latouche  v.  Lord  Dunsany,  1  Sch.  &  Lcfr.  157.  And 
see  Bond  v.  Hopkins,  Ibid.  430.  See  also  Dorrow  v.  Kclley,  1  Dall.  142 ;  Grant  v. 
U.  S.  Bank,  1  Caines,  Cas.  112;  Cleaveland  v.  Clarke,  Brayt.  166  :  Bridgen  v.  Car- 
hartt,  1  Hopk.  234.  In  most  of  the  United  States,  also,  the  statutes,  providing  for  the 
redemption  of  mortgaged  estates,  expressly  give  this  right  of  redemption,  on  payment 
or  tender  of  the  amount  due  upon  the  morUjaije.  See  Loring  v.  Cooke,  3  Pick.  48,  50 ; 
Green  v.  Tanner,  10  Mete.  411.  In  Connecticut,  where  no  such  statute  existed,  the  rule 
stated  in  the  text  has  been  applied.  Scripture  v.  Johnson,  3  Conn.  It.  211,  213.  Sec 
post,  §  55,  note. 

vol.  i.  52 


614  Title  XV.     Mortgage.     Ch.  III.  5.  38—43. 

money  due  on  bond;  because,  upon  the  ancestor's  death,  the  bond 
becomes  the  heir's  own  debt,  (a) 1 

39.  The  same  rule  has  been  adopted  in  the  case  of  mortgages 
for  terms  of  years.  Thus  if  the  executor  of  the  mortgagor  brings 
a  bill  to  redeem,  he  must  pay  both  the  mortgage-money  and  the 
bond  debt,  (b) 

40.  Since  the  statute  made  against  fraudulent  devises,  the 
devisee  of  an  equity  of  redemption  cannot  redeem  without  pay- 
ing off  a  debt  upon  bond,  as  well  as  the  money  due  upon  mort- 
gage ;  because  that  statute  puts  the  devisee  in  the  same  situation 

as  the  heir,  (c) 
107*         *41.  If  a  person   first  lends  money  upon  bond,  and 

afterwards  takes  an  assignment  of  a  mortgage,  he  has  the 
same  equity  against  the  mortgagor  and  his  heirs,  to  have  both 
debts  paid,  (d) 

42.  If  part  of  the  money,  originally  secured  by  a  mortgage,  be 
paid  off,  and  a  further  sum  is  borrowed  from  the  same  parties, 
upon  a  defective  security,  no  redemption  will  be  granted  unless 
both  sums  are  paid. 

43.  Husband  and  wife  mortgaged  the  wife's  land  by  fine  for 

(a)  Shuttleworth  v.  Laycock,  1  Vern.  245.  (b)  Anon.  2  Vera.  177.    1  P.  Wms.  776. 

(c)  Tit.  38,  c.  1.  1  Will.  4,  c.  47.  (4  Kent,  Comm.  175.)  1  Ab.  Eq.  325.  Prec.  in  Cha. 
407.  (d)  Hallelay  v.  Kirtland,  2  Ch.  R.  301. 


i  In  the  settlement  of  estates,  it  is  a  cardinal  rule  of  American  law,  that  all  the 
property  of  the  deceased  is  charged  as  a  trust  fund  for  the  payment  of  his  debts.  The 
personalty  is  first  to  be  exhausted ;  after  which  the  executor,  on  application  to  the 
proper  Court,  obtains  license  to  sell  all  or  so  much  of  the  real  estate  as  may  be  neces- 
sary to  pay  the  remaining  debts  ;  the  proceedings  being  regulated  by  statutes.  Ordi- 
narily, therefore,  remedy  can  be  had,  in  the  first  instance,  only  against  the  executor  or 
administrator ;  the  heir  being  liable  only  in  regard  to  those  debts  for  which  no  action 
could  have  been  had  against  the  personal  representative  within  the  period  mentioned 
in  the  statutes  limiting  such  actions.  Royce  v.  Burrell,  12  Mass.  395;  Webber  v. 
Webber,  7  Greenl.  127.  The  land  descends  to  the  heir,  upon  the  death  of  the  ancestor; 
his  title  being  liable  to  be  divested  by  a  sale  by  the  executor  or  administrator,  as  above 
stated.  Gibson  v.  Farley,  16  Mass.  280.  If  he  should  apply  to  redeem  a  mortgage  of 
his  ancestor,  in  those  States  in  which  statute  provisions  exist  entitling  the  mortgagor  to 
redeem  on  payment  of  the  mortgage  money,  it  is  conceived  that  the  doctrine  in  the  text 
could  not  be  applied  to  his  case.  But  in  all  other  cases,  where  the  redemption  of  the 
land  would  immediately  constitute  it  assets  in  the  hands  of  the  heir,  in  respect  to  which 
he  would  be  liable  to  the  same  creditor  on  the  obligation  of  his  ancestor,  the  principle  in 
the  text,  of  avoiding  circuity  of  action,  would  doubtless  be  applied  by  a  Court  of  Equity 
here,  as  in  England.  See  4  Kent.  Comm.  175  ;  1  Story,  Eq.  Jur.  §  418  ;  2  Story,  Eq. 
Jur.  §  1010;  lPow.onMort.  348,  note  (G)  by  Coventry.     See  supra,  §  17,  note  (2.) 


Title  XV.     Mortgage.     Ch.  III.  s.  43—46.  615 

£400,  and  the  mortgage  was  forfeited.  The  husband  paid  off 
part  of  the  mortgage  money,  but  afterwards  borrowed  it  back 
again.  Decreed  that  the  mortgagee  having  the  estate  in  law 
in  him,  by  the  forfeiture  of  the  mortgage,  he  should  hold  the 
land  against  the  heir  of  the  wife,  until  the  whole  money  was 
paid,  (a) 

44.  This  privilege  is  only  allowed  against  the  mortgagor,  his 
heir  or  devisee ;  not  against  a  purchaser  or  assignee  of  the  equity 
of  redemption,  who  may  redeem  without  discharging  a  bond 
debt  due  to  the  mortgagee  ;  because  the  lands,  in  the  hands  of 
the  alienee,  can  be  charged  with  nothing  but  what  is  an  imme- 
diate lien  thereon,  which  the  bond  is  not.  (b) 

45.  A,  seised  in  fee  of  lands,  made  a  mortgage  to  B  for  ,£100, 
afterwards  borrowed  .£100  more  of  B  upon  bond,  and  died.  The 
heir  at  law  conveyed  the  inheritance  and  equity  of  redemption  to 
trustees,  in  trust  for  the  payment  of  all  the  bond  and  simple 
contract  debts  of  his  father,  equally  ;  after  which  the  trustees 
brought  their  bill  to  redeem  against  B,  who  insisted  on  being 
paid  his  debt  by  bond,  as  well  as  that  by  mortgage.  It  was  de- 
creed, that  though  the  heir  must  have  paid  the  bond  debt,  before 
he  was  allowed  to  redeem,  because  it  became  his  debt  on  the 
death  of  his  ancestor  ;  yet  it  could  not  be  said  to  be  due  from  the 
assignee  of  the  heir,  the  bond  being  no  lien  upon  the  land,  (c) 

46.  A  settlement  was  made  by  a  father  on  the  marriage  of  his 
son,  with  a  covenant,  that  it  should  be  free  from  incumbrances  ; 
in  consideration  of  which  the  son  covenanted  to  reconvey  part  of 
the  estate,  after  the  father's  death,  or  to  pay  £300  to  such  per- 
sons as  the  father  should  appoint.  The  father  created  an  incum- 
brance of  £300  by  mortgage  ;  afterwards  appointed  £300  to  his 
daughter,  and  died.  The  son  brought  a  bill  to  have  the  estate 
disincumbered  of  that  mortgage ;  also  to  have  a  bond  of 

the  *  father's  to  the  mortgagee  delivered  up,  and  dis-  *  108 
charged  out  of  the  assets  of  the  father. 

Lord  Hardwicke  said,  the  plaintiff  had  a  plain  equity  to  have 
the  estate  disincumbered  of  the  mortgage  brought  on  it,  in  fraud 
of  the  marriage  settlement.  As  to  the  bond,  where  the  mortgagor 
of  an   estate,  either   before    or    after   the   marriage,    contracted 

(«)  Reason  v.  Sacheverell,  1  Vern.  41.  2  Cha.  Ca.  98.  See  also  Pitt  v.  Pitt,  1  T.  &  Russ. 
180.  (l>)  1  Vcs.  87. 

(c)  Coleman  v.  Wyncc,  1  P.  Wms.  775.  Pree.  in  Cha.  511.     Bayly  v.  Robson,  Preo.  in 

Cha.  89. 


616  Title  XV.     Mortgage.     Ch  III.  s.  46—48. 

another  debt  with  the  mortgagee,  for  which  he  gave  a  bond,  and 
died,  and  the  equity  of  redemption  descended  to  the  heir  at  law, 
a  court  of  equity  would  permit  the  mortgagee  to  tack  the  bond 
to  the  mortgage,  because  otherwise  it  would  cause  an  unnecessary 
circuity  ;  and  the  heir  at  law  was  debtor  for  both.  But  where 
the  person  claiming  the  equity  of  redemption,  was  a  purchaser  for 
a  valuable  consideration,  there  was  no  right  to  tack  the  bond  to 
the  mortgage,  because  the  estate  was  not  liable  to  the  bond  debt. 
Though  the  plaintiff  was  entitled  to  be  indemnified,  as  against 
the  father,  for  what  he  was  bound  to  pay  by  the  father's  bond  ; 
yet  he  was  entitled  only  out  of  the  father's  assets,  (a) 

47.  If  there  are  several  incumbrances  on  an  estate,  and  a  prior 
incumbrancer  claims  a  debt  secured  by  bond,  he  will  not  be 
allowed  to  add  it  to  his  mortgage ;  but  it  will  be  postponed  to 
all  real  incumbrances,  whether  by  mortgage,  judgment,  or  statute. 
For  the  bond  is  no  charge  on  the  estate ;  nor  has  he  the  same 
equity  against  a  subsequent  incumbrancer,  as  against  an  heir  at 
law ;  who  is  liable  to  the  bond,  if  he  has  assets. 

48.  A  creditor,  by  judgment,  in  1698,  for  £600,  comes  to  an 
account  in  1707  with  the  conusor,  and  settles  the  remainder  due 
upon  the  judgment  at  £420 ;  and  then  takes  a  mortgage  in  fee 
for  that  sum,  as  a  collateral  security  to  the  judgment.  One 
Saunders,  an  attorney,  in  1716,  takes  an  assignment  of  this  mort- 
gage, in  which  there  is  a  recital,  that  £90,  the  consideration  of 
the  assignment,  was  then  the  full  worth  of  the  estate  ;  and  the 
assignment,  likewise,  was  made  at  a  time  when  there  was  a  suit 
depending  between  particular  creditors,  upon  several  other  estates 
of  the  mortgagor,  in  conjunction  with  judgment  creditors  at 
large,  and  the  representatives  of  the  mortgagor.  Saunders  was 
in  possession,  too,  of  another  mortgage  in  1688,  upon  the  same 
estate  as  was  subject  to  the  judgment  in  1698,  and  the  mortgage 
in  1707. 

Lord  Chancellor.  "  Saunders  shall  not  be  allowed  to 
109  *  tack  the  *  two  mortgages  together,  viz.,  that  in  1688,  and 
the  other  in  1707,  so  as  to  defeat  intermediate  incum- 
brances between  the  years  1688  and  1698  ;  and  yet  the  mortgage 
in  1707  shall  have  relation  back  to  the  judgment  in  1698  ;  and, 
by  consolidating  them  together,  shall  entitle  Saunders  to  receive 
the  sum  due  upon  that  judgment  prior  to  creditors  after  the  year 

(a)  Trougbton  v.  Troughton,  1  Ves.  86. 


Title  XV.     Mortgage.     Ch.  III.  s.  48—50.  617 

1698  ;  but  as  to  money  reported  due  since  the  year  1707,  Saun- 
ders is  to  be  paid  only  in  priority  to  creditors  subsequent  to  1707. 
"  The  rule  of  the  Court,  as  to  prior  incumbrancers  taking  in  a 
subsequent  incumbrance,  so  as  to  tack  it  to  the  prior,  is,  where 
he  is  a  bond  fide  purchaser  of  the  puisne  incumbrance,  without 
notice  of  intermediate  ones.  But  here,  the  puisne  incumbrance 
was  bought  in  while  there  was  such  a  lis  pendens  as  will  make 
Saunders  a  purchaser  with  notice."  (a) 

*49.  In  a  subsequent  case,  the  question  was,  whether     *110 
a  mortgagee,  who  lent  a  further  sum  upon  bond,  should 
be  allowed  to  tack  it  to  his  mortgage,  in  preference  to  other  cred- 
itors, under  a  trust  for  payment  of  debts,  created  by  the  will. of 
the  mortgagor. 

Lord  Hardwicke  said  he  had  considered  this  case ;  and  was 
inclined  to  think  the  mortgagee  should  not  be  allowed  to  tack 
the  bond  to  the  mortgage.  With  regard  to  the  heir  of  the  mort- 
gagor, the  reason  why  he  should  not  redeem  the  mortgage,  with- 
out paying  the  bond  likewise,  was  to  prevent  a  circuity  ; 
because  *the  moment  the  estate  descended  upon  him,  it  *  111 
became  assets  in  his  hands,  and  liable  to  the  bond.  A 
devisee  too  of  the  mortgaged  premises,  for  his  own  benefit,  was 
subject  to  the  same  rule,  since  the  Statute  of  Fraudulent  Devises, 
made  in  favor  of  bond  creditors.  But  this  was  a  devise  in  trust, 
for  payment  of  debts,  and  the  descent  was  consequently  broke  ; 
so  that  he  was  of  opinion  the  mortgagee  could  have  no  priority, 
with  regard  to  his  bond  ;  but  as  to  that,  must  come  in  pro  ratd 
with  the  rest  of  the  creditors,  under  the  trust.  But  if  the  counsel 
for  the  mortgagee  had  an  inclination  to  be  heard  on  this  point,  it 
should  stand  over. 

The  Attorney- General,  who  was  counsel  for  the  mortgagee, 
said  he  thought  the  point  was  too  strong  against  his  client  to  be 
maintained ;  and  the  Court  thereupon  made  an  immediate  decree 
accordingly,  (b) 

50.  Upon   further  directions,   the  only  question  was,  whether 

Mr.    Carforth,   a  creditor  by  mortgage   of    Andrew  Whelpdale 

deceased,  and  also  a  bond  creditor  for  .£1834  3s.  should  tack  his 

bond  debt  to  his  mortgage,  against  other  specialty  creditors. 

Lord   Thurlow.     "  The  only  reason  why  the  mortgagee  can 

(a)  Morrett  v.  Paske,  2  Atk.  52.     Vide  Ch.  5.  (b)  Heams  v.  Bunco,  3  Atk.  630. 

52* 


618  Title  XV.     Mortgage.     Ch.  III.  s.  50—54. 

tack  his  bond  to  his  mortgage  is  to  prevent  a  circuity  of  suits : 
it  is  solely  matter  of  arrangement  for  that  purpose ;  for,  in  natural 
justice,  the  right  has  no  foundation.  The  principle  explains  the 
rule,  and  therefore  it  can  go  no  further.  The  creditors,  having 
another  specific  security,  cannot  give  him  in  justice  any  priority 
for  a  lien  that  is  subsequent.  There  being  no  foundation  in  jus- 
tice, the  only  question  is,  whether  the  Court  is  in  the  practice  of 
doing  it ;  and  it  has  not  done  it  in  any  case  but  that  of  the  heir, 
and  merely  to  prevent  circuity."  (a) 

51.  It  has  been  long  settled,  that  where  a  man  makes  two 
several  mortgages,  of  two  several  estates,  to  the  same  person ; 
and  one  of  them  proves  defective  in  title  or  value ;  neither  the 
mortgagor  nor  his  heir  will  be  admitted  to  redeem  one,  without 
the  other. 

52.  The  plaintiff's  bill  was  to  redeem  a  mortgage  made  by  his 
father  to  the  defendant,  who  by  his  answer  insisted  that  the 
plaintiff's  father  had  made  him  two  several  mortgages  of  several 
lands  ;  that  the  plaintiff  endeavored  to  defeat  him  of  one  of  those 
mortgages  by  reason  of  an  entail,  and  hoped  that  in  equity  he 

should  redeem  both  or  neither.  But  the  Court  said  he 
112*     should  *  redeem  both  or  neither;  and  so,  if  one  mortgage 

had  been  deficient  in  value,  and  the  other  mortgage  had 
been  worth  more  than  the  money  lent  upon  it,  the  heir  should 
not  have  been  admitted  to  redeem  the  one  without  the  other.  (6) 

53.  The  plaintiff,  as  assignee  of  a  bankrupt,  brought  his  bill  to 
redeem  a  mortgage  of  the  manor  of  N.  made  by  the  bankrupt  to 
the  defendant.  The  defendant  by  his  answer  insisted  that  he 
first  lent  the  bankrupt  £200  on  a  mortgage  of  a  particular  tene- 
ment ;  and  afterwards  lent  him  .£300  on  a  mortgage  of  the 
manor  of  N.  which  was  of  better  value  than  the  money  due  ; 
but  the  first  mortgage  was  deficient  in  point  of  value.  Per  Cu- 
riam.    If  the  plaintiff  will  redeem  one,  he  shall  redeem  both,  (c) 

54.  Lord  Hardwicke  appears  not  to  have  considered  this  case 
as  an  authority.  But  in  Ambler's  Reports  the  case  of  Tiliey  v. 
Davis,  before  Lord  Hardwicke,  is  cited,  where  two  estates  were 
separately  mortgaged  to  the  same  person,  by  one  and  the  same 
deed.     The  purchaser  of  the  equity  of  redemption  of  one  of  the 

(«)  Lowthian  v.  Hasel,  3  Bro.  C.  C.  162.     Harnerton  v.  Rogers,  1  Yes.  Jan.  513. 
(b)  Margrave  v.  Le  Hooke,  2  Vera.  207.  (c)  Pope  r.  Onslow,  2  Vera.  286. 


Title  XV.     Mortgage.     Ch.  III.  s.  54—56.  619 

estates  brought  a  bill  to  redeem  the  estate  which  he  had  bought ; 
and  it  was  held  by  the  Master  of  the  Rolls  that  he  was  not  en- 
titled to  redeem  one  only,  but  must  redeem  both ;  and  the  decree 
was  affirmed  by  Lord  Hardwicke. 

Also  the  case  of  Tribourg  v.  Lord  Pomfret  and  Wilkins,  at  the 
Rolls,  16  July,  1773.  The  plaintiff  had  two  distinct  mortgages, 
upon  two  different  estates,  made  by  the  defendant  Wilkins,  by 
different  instruments.  Lord  Pomfret  had  a  second  morto-ao-e 
upon  one  of  the  estates  only.  Bill  to  be  redeemed  by  Lord 
Pomfret  and  Wilkins,  or  to  foreclose.  Sir  T.  Sewell,  M.  R.,  de- 
creed Lord  Pomfret  to  redeem  both  mortgages,  or  to  stand  fore- 
closed, (a) 

55.  In  a  modern  case,  Lord  Alvanley,  when  Master  of  the  Rolls, 
said,  that  if  two  separate  estates  were  mortgaged,  by  which  he 
understood  the  legal  estate  absolutely,  and  at  law  irredeemably 
conveyed,  the  Court  of  Chancery  would  not  interpose  in  favor  of 
the  redemption  of  one,  without  the  redemption  of  both.  Pope 
v.  Onslow,  followed  by  two  modern  cases,  had  settled  the  point, 
that  as  against  the  mortgagor  or  his  assigns,  and  therefore  he 
must  suppose  against  all  creditors,  if  there  were  two  legal  mort- 
gages, which  at  law  were  become  absolute  (for  that  must  be  the 
principle)  the  mortgagee  should  insist  on  being  redeemed 

*  as  to  both,  or  neither  ;  and  that  Lord  Kenyon  had  acted  *  113 
upon  this  doctrine,  (by 

56.  With  respect  to  the  time  within  which  a  redemption  of  a 
mortgage  is  allowed,  the  Courts  of  Equity  have  not  established 
any  positive  general  rule,  when  the  length  of  possession  of  the 
mortgagee  shall  bar  the  mortgagor's  right  of  redemption ;  as  they 
consider  that  lands  are  usually  mortgaged  for  much  less  than 
their  real  value,  and  that  when  a  mortgagee  receives  his  principal, 
interest,  and  costs,  he  cannot  complain  of  any  injury. 

(a)  Ex  parte  Carter,  Ambl.  733.     Purefoy  V.  Purefoy,  1  Vern.  29,  and  Mr.  Raithby's  note. 
Willie  v.  Lugg,  2  Eden,  788.     Roe  v.  Soley,  2  Black.  R.  72G. 
{b)  Jones  v.  Smith,  2  Ves.  jun.  372.     Ireson  v.  Denn,  2  Cox,  R.  425. 

1  In  all  the  cases  on  the  subject  of  tacking,  it  is  to  be  observed,  that  there  is  a  broad 
distinction  taken  between  a  bill  to  redeem  and  a  bill  to  foreclose  a  mortgage.  In  the 
former  case,  redemption  being  asked  for,  on  equitable  grounds  alone,  the  rule,  that  he 
who  would  have  equity  must  do  equity,  applies,  and  tacking  is  allowed.  But  in  a  bill 
to  foreclose  a  mortgage,  the  creditor  applies  on  the  ground  of  the  mortgage  debt  alone. 
Chase  v.  McDonald,  7  liar.  &  Johns.  160;  and  see  Cootc  on  Mortg.  393;  Lee  v.  Stone, 
5  G.  &  J.  1  ;  Ogle  v.  Ship,  1  A.  K.  Marsh.  287. 


620  Title  XV.     Mortgage.     Ch.  III.  s.  57. 

57.  It  being,  however,  extremely  difficult  for  a  mortgagee, 
who  has  long  been  in  possession,  to  make  out  an  exact  account 
of  the  profits  he  has  received,  the  Court  of  Chancery  has  laid  it 
down  as  a  rule,  by  analogy  to  the  Statute  of  Limitations,  21  Jac. 
1,  that  where  the  mortgagor  has  suffered  the  mortgagee  to  con- 
tinue for  20  years  in  the  quiet  and  uninterrupted  possession  of. 
the  lands  mortgaged,  the  right  of  redemption  shall  be  presumed 
to  be  abandoned.  (a)f  1 

(a)  Tit.  31,  c.  2. 


[  f  See  Stat.  3  &  4  Will.  4,  c.  27,  $  28,  whereby  it  is  enacted  that  when  a  mortgagee 
shall  have  obtained  the  possession  or  receipt  of  the  profits  of  any  land,  or  the  receipt  of 
any  rent,  comprised  in  his  mortgage,  the  mortgagor,  or  any  person  claiming  through 
him,  shall  not  bring  a  suit  to  redeem  the  mortgage  but  within  twenty  years  next  after 
the  time  at  which  the  mortgagee  obtained  such  possession  or  receipt ;  unless  in  the 
mean  time  an  acknowledgment  of  the  title  of  the  mortgagor  or  of  his  right  of  redemp- 
tion shall  have  been  given  to  the  mortgagor,  or  some  person  claiming  his  estate,  or  to 
the  agent  of  such  mortgagor  or  person,  in  writing,  signed  by  the  mortgagee  or  the  person 
claiming  through  him  ;  and  in  such  case  no  such  suit  shall  be  brought  but  within  twenty 
years  next  after  the  time  at  which  such  acknowledgment,  or  the  last  of  such  acknowledg- 
ments, if  more  than  one,  was  given  ;  and  when  there  shall  be  more  than  one  mortgagor, 
or  more  than  one  person  claiming  through  the  mortgagor  or  mortgagors,  such  acknow- 
ledgment, if  given  to  any  of  such  mortgagors  or  persons,  or  his  or  their  agent,  shall  be  as 
effectual  as  if  the  same  had  been  given  to  all  such  mortgagors  or  persons  ;  but  where  there 
shall  be  more  than  one  mortgagee  or  more  than  one  person  claiming  the  estate  or  interest 
of  the  mortgagee  or  mortgagees,  such  acknowledgment,  signed  by  one  or  more  of  such 
mortgagees  or  persons,  shall  be  effectual  only  as  against  the  party  or  parties  signing  as 
aforesaid,  and  the  person  or  persons  claiming  any  part  of  the  mortgage  money  or  land 
or  rent,  by,  from  or  under  him  or  them,  and  any  person  or  persons  entitled  to  any 
estate  or  estates,  interest  or  interests,  to  take  effect  after  or  in  defeasance  of  his  or  their 
estate  or  estates,  interest  or  interests,  and  shall  not  operate  to  give  to  the  mortgagor  or 
mortgagors  a  right  to  redeem  the  mortgage  as  against  the  person  or  persons  entitled  to 
any  other  undivided  or  divided  part  of  the  money,  or  land,  or  rent;  and  where  such 
of  the  mortgagees  or  persons  aforesaid  as  shall  have  given  such  acknowledgment,  shall 
be  entitled  to  a  divided  part  of  the  land  or  rent  comprised  in  the  mortgage,  or  some 
estate  or  interest  therein,  and  not  to  any  ascertained  part  of  the  mortgage  money,  the 
mortgagor  or  mortgagors  shall  be  entitled  to  redeem  the  same  divided  part  of  the  land 
or  rent,  on  payment,  with  the  interest  of  the  part  of  the  mortgage  money,  which  shall 
bear  the  same  proportion  to  the  whole  of  the  mortgage  money  as  the  value  of  such 
divided  part  of  the  land  or  rent  shall  bear  to  the  value  of  the  whole  of  the  land  or  rent 
comprised  in  the  mortgage.] 

1  [After  twenty  years  possession  by  the  mortgagee  after  condition  broken,  the  mort- 
gagor cannot  redeem  without  special  cause  shown.  Ayres  v.  Waite,  10  Cush.  72; 
Blethen  v.  Dwinal,  35  Maine,  (5  Red.)  556  ;  Cromwell  v.  Bank  of  Pittsburg,  2  Wal- 
lace, Jr.  569  ;  Robinson  v.  Fife,  3  Ohio,  N.  S.  551  ;  Jarvis  v.  Woodruff,  22  Conn.  548; 
Morgan  v.  Morgan,  10  Geo.  297.] 

The  rule  adopted  in  Courts  of  Equity,  in  cases  not  affected  by  any  statutory  provis- 
ions, is  thus  summarily  stated  by  Mr.  Justice  Story.     "  In  respect  to  the  time  within 


Title  XV.     Mortgage.     Ch.  III.  s.  58.  621 

*  58.  In  13  Cha.  II.  upon  a  claim  of  redemption,  it  was    *  114 
pleaded  that  20  years  had  elapsed  since  the  mortgage  had 

which  a  mortgage  is  redeemable,  it  may  be  remarked,  that  the  ordinary  limitation  is 
twenty  years  from  the  time  when  the  mortgagee  has  entered  into  possession,  after 
breach  of  the  condition,  under  his  title,  by  analogy  to  the  ordinary  limitation  of  rights 
of  entry  and  actions  of  ejectment.  (Eaffety  v.  King,  I  Keen,  K.  602,  609,  610, 
616,  617  ;  Cholmondeley  v.  Clinton,  2  Jae.  &  Walk.  1,  191,  S.  C.  4  Bligh,  N.  S.  1  ; 
Corbettu.  Barker,  1  Anst.  K.  138  ;  S.  C.  3  Anst.  R.  755  ;  White  v.  Parnther,  1  Knapp, 
R.  228.  229.)  If,  therefore,  the  mortgagee  enters  into  possession  in  his  character  of 
mortgagee,  and  by  virtue  of  his  mortgage  alone,  he  is  for  twenty  years  liable  to 
account ;  and,  if  payment  be  tendered  to  him,  he  is  liable  to  become  a  trustee  of  the 
mortgagor,  and  to  be  treated  as  such.  But,  if  the  mortgagor  permits  the  mortgagee  to 
hold  the  possession  for  twenty  years  without  accounting,  or  without  admitting  that  he 
possesses  a  mortgage  title  only,  the  mortgagor  loses  his  right  of  redemption,  and  the 
title  of  the  mortgagee  becomes  as  absolute  in  Equity,  as  it  previously  was  in  Law.  In 
such  a  case  the  time  begins  to  run  against  the  mortgagor  from  the  moment  the  mort- 
gagee takes  possession  in  his  character,  as  such;  and  if  it  has  once  begun  to  run,  and 
no  subsequent  admission  is  made  by  the  mortgagee,  it  continues  to  run  against  all  per- 
sons, claiming  under  the  mortgagor,  whatever  may  be  the  disabilities  to  which  they 
may  be  subjected.  (Ibid*.)  But,  if  the  mortgagee  enters,  not  in  his  character  of  mort- 
gagee only,  but  as  purchaser  of  the  equity  of  redemption,  he  must  look  to  the  title  of 
his  vendor  and  the  validity  of  the  conveyance,  which  he  takes.  So  that,  if  the  convey- 
ance be  such  as  gives  him  the  estate  of  a  tenant  for  life  only  in  the  equity  of  redemp- 
tion, there,  as  lie  unites  in  himself  the  characters  of  mortgagor  and  mortgagee,  he  is 
bound  to  keep  down  the  interest  of  the  mortgage  like  any  other  tenant  for  life  for  the 
benefit  of  the  persons  entitled  to  the  remainder ;  and  time  will  not  run  against  the 
remainder-man  during  the  continuance  of  the  life-estate.  (Raffety  v.  King,  1  Keen,  R. 
601.  609,  610,  616—618  ;  Corbett  v.  Barker,  1  Anst.  R.  138  ;  S.  C.  3  Anst.  755  :  Reeve 
v.  Hicks,  2  Sim.  &  Stu.  403  ;  Ravald  v.  Russell,  1  Younge,  R.  19.) 

"  Similar  considerations  will,  in  many  respects,  apply  to  the  right  of  foreclosure  of  a 
mortgagee.  If  he  has  suffered  the  mortgagor  to  remain  in  possession  for  twenty  years 
after  the  breach  of  the  condition,  without  any  payment  of  interest,  or  any  admission  of 
the  debt,  or  other  duty,  the  right  to  file  a  bill  for  a  foreclosure  will  generally  be  deemed 
to  be  barred  and  extinguished.  (Stewart  v.  Nichols,  1  Tamlin,  R.  307;  Christophers 
v.  Sparke,  2  Jae.  &  Walk.  223 ;  Trash  v.  White,  3  Bro.  Ch.  R.  289 ;  Toplis  v.  Baker, 
2  Cox,  R.  119.  See  also,  White  v.  Parnther,  1  Knapp,  R.  228,  229.)  However,  in 
cases  of  this  sort,  as  the  bar  is  not  positive,  but  is  founded  upon  a  presumption  of  pay- 
ment, it  is  open  to  be  rebutted  by  circumstances.  (Ibid.)"  2  Story,  Eq.  Jur.  §  1028,  a, 
1028,  I.  And  see  4  Kent,  Comm.  187—190  ;  Coote  on  Mortg.  541—547  ;  1  Pow.  on 
Mortg.  360,  Coventry's  ed. ;  Ross  v.  Norvell,  1  Wash.  14  ;  Wells  v.  Morse,  11  Verm.  R. 
9 ;  Dexter  v.  Arnold,  3  Sumn.  152  ;  Stewart  v.  Nichols,  Tam.  307.  [Gould  v.  White, 
6  Foster,  (S.  II.)  178  ;  Richmond  v.  Aiken,  25  Vt.  (2  Deane,)  324  ;  Haskell  v.  Bailey, 
22  Conn.  509  ;  Evans  v.  Hoffman,  1  Halst.  Ch.  354  ;  Boyd  v.  Harris,  2  Md.  Ch.  Decis. 
210:  Roberts  v.  Welch,  8  Ired.  Eq.  287.  The  production  of  the  mortgage;  and  note 
having  no  evidence  thereon  of  the  payment  of  interest,  raises  a  presumption  that  it  has 
not  been  paid.  Olmsted  v.  Elder,  2  Sandf.  Sup.  Ct.  325.]  The  supposed  relation  of 
the  mortgagor  to  the  mortgagee  as  his  tenant,'is  not  allowed  to  operate  against  the  pre- 
sumption of  payment  of  the  debt,  resulting  from  his  being  permitted  to  remain  in  pos- 
session for  a  long  period  of  time,  without  any  demand  of  payment  or  other  recognition 


622  Title  XV.     Mbrtsra&e.     Ch.  III.  s.  58—62. 


S"» 


been  forfeited ;  and  that  the  land  had  descended  to  the  heir  at 
law  of  the  mortgagee  who  had  sold  it.  The  plea  was  held 
good,  (a) 

59.  In  29  Cha.  II.  upon  a  rehearing  before  Lord  Keeper 
Bridgeman,  assisted  by  Vaughan  and  Turner,  Justices,  concern- 
ing the  redemption  of  a  mortgage,  made  upwards  of  forty  years 
before  ;  the  Lord  Keeper  declared  that  he  would  not  relieve 
mortgages  after  twenty  years  ;  for  that  the  statute  21  Jac.  c.  16, 
did  adjudge  it  reasonable  to  limit  the  time  of  one's  entry  to  that 
period  ;  and  though  matters  in  equity  were  to  be  governed  by  the 
course  of  the  Court,  it  was  best  to  square  the  rules  of  equity  as 
near  the  rules  of  reason  and  law  as  might  be.  (b)  x 

60.  Although  there  be  a  decree  to  redeem  and  account,  yet  if 
it  be  not  prosecuted  within  twenty  years,  no  redemption  will  be 
allowed. 

61.  Mr.  St.  John  mortgaged  certain  lands  in  1639  to  Sir 
Richard  Holford,  who  entered  into  possession  of  them.  In  1663, 
a  bill  was  brought  by  the  mortgagor  for  redemption,  and  a  de- 
cree obtained  to  redeem. ;  but  he  dying,  the  suit  was  revived  by 
his  three  daughters  ;  and  in  1672,  another  decree  was  obtained  to 
account.  The  plaintiff  having  purchased  from  the  daughters  of 
St.  John  several  estates — amongst  the  rest,  their  equity  of  re- 
demption— brought  his  bill  in  1700  to  redeem  ;  which  was  dis- 
missed, (c) 

62.  The  Court  of  Chancery,  in  further  imitation  of  the  Statute 

(a)  Clapham  v.  Bowyer,  1  Cha.  Eep.  286.     Pearson  v.  Pulley,  1  Cha.  Ca.  102. 

(b)  White  v.  Ewer,  2  Vent.  340.     Aggas  v.  Pickerel!,  3  Atk.  225. 

(c)  St.  John  v.  Turner,  2  Vera.  418. 

of  the  debt.  After  twenty  years,  this  presumption  may  be  made,  even  in  Chancery. 
Sec  Christophers  v.  Sparke,  2  Jac.  &  W.  234;  Cholmondeley  v.  Clinton,  Ibid.  179  ; 
Cooke  v.  Soltau,  2  Sim.  &  Stu.  154  ;  Giles  v.  Baremore,  5  Johns.  Ch.  II.  545.  In  law, 
it  is  freely  permitted  to  be  made  by  the  jury.  Jackson  v.  Wood,  12  Johns.  242  ;  Col- 
lins v.  Torrey,  7  Johns.  278 ;  Jackson  v.  Hudson,  3  Johns.  375  ;  Jackson  v.  Pierce,  10 
Johns.  414;  Jackson  v.  Pratt,  Ibid.  381 ;  Inches  v.  Leonard,  12  Mass.  379  ;  Morgan  v. 
Davis,  2  H.  &  McHen.  9.  If  the  mortgagee  enters  in  the  lifetime  of  the  tenant  for  life 
of  the  mortgaged  estate,  the  remainder-man  will  be  barred  of  his  right  to  redeem,  after 
twenty  years  from  such  entry.     Harrison  v.  Hollins,  1  Sim.  &  Stu.  471. 

Whether  length  of  time  can  bar  a  bill  to  redeem,  in  any  other  case  than  that  of  a 
mortgage  in  fee  simple,  qucere ;  and  see  Cownc  v.  Douglass,  McCle.  &  Y.  274. 

1  The  possession  must  be  an  actual,  quiet,  and  uninterrupted  possession  for  twenty 
years,  or  a  period  of  time  sufficient  to  toll  the  right  of  entry  at  law.  Moore  v.  Cable,  1 
Johns.  Ch.  R.  385. 


Title  XV.     Mortgage.     Ch.  III.  s.  62—65.  623 

of  Limitations,  has  determined  that  where  the  neglect  to  claim  a 
redemption  has  arisen  from  infancy,1  coverture,  imprisonment,  or 
absence  from  the  realm,  a  possession  of  twenty  years  shall  not 
operate  as  a  bar  to  the  redeeming  a  mortgage,  (a)  f 

63.  Alice  Cornel  being  seised  in  fee  of  copyhold  lands,  she 
and  her  husband  mortgaged  them  to  Doctor  Mountford  for  £30. 
The  premises  being  forfeited  by  non-payment  of  the  mortgage 
money,  Doctor  Mountford  took  possession  thereof;  and 
disposed  *  of  them  to  his  wife  for  life,  the  reversion  to  *  115 
the  defendant.     Alice  Cornel  lived  twenty-six  years  after 

the  mortgage  was  made,  and  then  died,  leaving  the  plaintiff  her 
son  and  heir,  who  brought  his  bill  to  redeem.  The  defendant 
insisted  that  the  plaintiff  ought  not  to  redeem  the  mortgage, 
being  of  such  long  standing,  and  the  premises  having  been  con- 
veyed away  to  a  stranger.  A  redemption,  was,  notwithstanding, 
decreed,  on  account  of  the  coverture  of  Alice  Cornel,  (b) 

64.  Where  twenty  years  have  elapsed  after  the  mortgagee's 
entering  into  possession,  and  the  time  has  begun  to  run  against 
the  ancestor,  no  legal  disability  in  the  heir  will  have  any 
effect,  (c)  $ 

65.  The  plaintiff's  father  had  mortgaged  the  estate  in  ques- 
tion in  1686.  Ten  years  after,  this  mortgage  was  assigned  over 
to  the  defendant,  who  by  agreement  was  then  let  into  possession, 
and  had  continued  so  ever  since.  The  mortgagor  had  been  sev- 
eral years  dead,  leaving  the  plaintiff's  father,  his  eldest  son  and 
heir,  of  full  age,  who  died  in  1714,  leaving  the  plaintiff,  his  son 
and  heir,  about  twelve  years  of  age,  who  brought  his  bill  for  an 
account,  and  to  be  let  in  to  a  redemption  of  the  estate,  of  which 
the  defendant  had  been  in  possession  thirty-three  years,  so  that 
he  was  greatly  overpaid  both  his  principal  and  interest. 

Lord  King  dismissed  the  bill ;  and  ordered  it  to  be  entered 
down  as  one  of  the  reasons  of  such  dismissal,  that  the  plaintiff 

(a)  Tit.  31,  c.  2. 

(6)  Cornel  v.  Sykes,  1  Cha.  Rep.  193.     Price  r.  Copner,  1  Sim.  &  Stu.  347. 

(c)  Vide  tit.  31,  c.  2. 


1  An  infant  i.s  allowed  the  twenty  years  after  his  arrival  of  age,  in  the  absence  of  any 
other  rule.     Lamar  v.  Jones,  3  Har.  &  McIIcn.  328. 

[t  Sec  Stat.  3  &  4  Will.  4,  c.  27,  §  28,  and  §  16,  17,  18. \ 
[  I  Sec  Stat.  3  &  4  Will.  4,  c.  27,  §  17.J 


624  Title  XV.     Mortgage.      Ch.  III.  s.  65—69 


o 


had  no  remedy,  by  ejectment  at  law,  to  recover  the  possession, 
being  barred  by  the  Statute  of  Limitations  ;  and  he  thought  that 
a  reasonable  guide  for  a  court  of  equity  to  follow ;  and  though 
the  plaintiff  was  an  infant  at  his  father's  death,  yet  the  twenty 
years  had  elapsed  before,  when  there  was  no  infancy  ;  and  there- 
fore would  afterwards  run  against  infants,  (a) 

66.  On  a  demurrer  to  a  bill  to  redeem  a  stale  mortgage,  where 
the  mortgagee  appeared  by  the  bill  to  have  been  in  possession 
above  twenty  years,  the  Court  held,  the  defendant  need  not  plead 
the  length  of  time,  but  might  demur ;  that  no  redemption  should 
be  allowed  in  such  case,  unless  there  was  an  excuse  by  reason 

of  imprisonment,  infancy,  or  coverture,  or  by  having 
116  *     *  been  beyond  sea;  and  not  by  having  absconded,  which 

was  an  avoiding  or  retarding  of  justice.  That  there  did  not 
seem  to  be  any  certain  time  when  the  length  of  possession  of 
the  mortgagee  should  bar  the  mortgagor's  right  of  redemption  ; 
but  as  twenty  years  would  bar  an  entry  or  ejectment,  abstracting 
from  the  excuses  above  mentioned,  there  was  the  same  reason  for 
allowing  it  to  bar  a  redemption.  The  demurrer  was  allowed  by 
Lord  King,  (b) 

67.  The  same  rule  was  agreed  to  in  another  case  by  Lord 
Talbot,  who  likewise  declared  it  to  be  his  opinion,  though  the 
case  was  afterwards  compromised,  that  whereas  the  Court  of 
Chancery  had  not  in  general  thought  proper  to  exceed  twenty 
years,  where  there  was  no  disability,  in  imitation  of  the  first 
clause  of  the  Statute  of  Limitations ;  so,  after  the  disability  re- 
moved, the  time  fixed  for  prosecuting,  in  the  proviso,  which  was 
ten  years,  ought  in  like  manner  to  be  observed,  (c) 

68.  As  the  difficulty  of  accounting  is  the  principal  reason  that 
courts  of  equity  will  not  allow  a  mortgage  to  be  redeemed,  after 
the  mortgagee  has  been  twenty  years  in  possession,  when  that 
objection  is  removed,  by  an  account  having  been  settled  ivithin 
twenty  years  the  right  of  redemption  will  be  thereby  preserved,  f 

69.  The  bill  was  to  redeem  a  mortgage  made  in  1642.  The 
mortgagee  entered  in  1650 ;  three   descents  on  the    defendant's 

(a)  Knowles  r.  Spence,  1  Ab.  Eq,  315. 

(b)  Jeimeri).  Tracey,  cited  3  P.  Wms.  287,  n. 

(c)  Belch  v.  Harvey,  3  P.  Wms.  287,  n.  17  Ves.  99. 

[tSee  Stat.  3  &  4  Will.  4,  c.  27,  §  28,  and  §  16,  17,  18.] 


Title   XV.     Mortgage.    Ch.  III.   s.  69—72.  625 


'O  l"» 


part,  and  four  on  the  part  of  the  plaintiff;  yet  the  length  of  time 
being  answered  for  the  greatest  part,  by  infancy  or  coverture, 
and  forasmuch  as  in  1686  a  bill  was  brought  by  the  mortgagee 
to  foreclose,  and  an  account  then  made  up  by  the  mortgagee,  the 
Court  decreed  a  redemption,  and  an  account,  from  the  foot  of  the 
account  in  1686.  (a) 

70.  A  mortgage,  after  forty  years'  possession  in  the  mortgagee, 
was  held  to  be  redeemable  upon  the  foot  of  a  stated  account, 
with  an  agreement  for  turning  interest  into  principal ;  and  the 
decree  was  affirmed  by  the  House  of  Lords,  (b) 

71.  Length  of  time  was  insisted  on  by  the  defendant  as  a  bar 
to  the  redemption  of  a  mortgage,  sought  by  the  plaintiff's  bill,  it 
being  twenty-nine  years  old.     Lord  Hardwicke  said,  he  was 

not  for  encouraging  redemption  *  of  mortgages  of  very  *  117 
long  standing:  but  then  the  Court  must  not  wink  so  hard 
as  not  to  allow  it  in  any  case.  There  was  a  pretence  of  coverture, 
which  was  no  excuse,  because  if  a  woman  became  afterwards 
discovert,  the  Statute  of  Limitations  would  run  from  that  time  ; 
and  though  she  should  marry  again,  it  would  run  after  the  second 
marriage.  The  next  excuse  was,  that  there  was  a  tenancy  by 
the  curtesy  :  but  there  would  be  no  bounds  to  a  redemption,  if 
that  was  an  excuse ;  no  mortgagee  could  ever  be  quieted  in  the 
possession ;  for  it  was  of  no  consequence  to  the  mortgagee,  who 
had  the  equity  of  redemption ;  if  they  did  not  make  use  of  that 
right,  they  should  be  barred.  But  though  the  mortgage  was  in 
1718,  in  this  case ;  yet  no  longer  than  1730,  (twelve  years,)  the 
clerk  to  the  solicitor  for  the  mortgagor  had  actually  settled  an 
account  of  what  was  due  for  principal  and  interest,  in  order  to 
pay  off  the  mortgage  ;  and  though  no  further  proceedings  had 
been,  yet  that  should  save  the  right  of  redemption,  (c) 

72.  Any  act  of  the  mortgagee,  by  which  he  acknowledges  the 
transaction  to  be  still  a  mortgage  within  twenty  years  from  the 
time  when  a  bill  is  brought  to  redeem,  will  preserve  the  right  of 
redemption  :  as  if  the  mortgagee,  by  his  will,  disposes  of  the 
money,  in  case  the  mortgage  be  redeemed,  (d)  f  ] 

(a)  Proctor  v.  Cowper,  2  Vera.  377.  (b)  Conway  v.  Shrimpton,  5  Bro.  Pari.  Ca.  187. 

(c)  Anon.  2  Atk.  333.     Barron  v.  Martin,  19  Ves.  327,  S.  C.  Cooper,  192. 
(<•/)  ( Hodle  v.  Healey,  6  Mad.  181.     Rayner  v.  Castler,  Ibid.  274.) 

[  t  Stat.  3  &  4  Will.  4,  c.  27,  §  28.] 

i  A  verbal  recognition  has  been  held  sufficient.     Shepperd  v.  Murdock,  3  Mur.  218. 

vol.  i.  .  53 


626  Title  XV.     Mortgage.     Ch.  III.  s.  73—76. 

73.  A.,  in  1679,  mortgaged  lands  to  J.  S.,  for  a  small  sum  of 
money,  by  an  absolute  conveyance  and  defeasance ;  soon  after, 
A.'s  necessities  forced  him  to  go  abroad,  where  he  died,  and  his 
heir  knew  nothing  of  the  mortgage.  In  1702,  J.  S.  devised,  that 
if  the  mortgage  should  be  redeemed,  the  money  should  go  in  a 
particular  manner.  About  sixteen  years  after  the  will,  a  bill  was 
filed  for  redemption,  to  which  was  objected  the  great  length  of 
time ;  and  that,  by  the  settled  rules  of  the  Court,  a  mortgage 
should  not  be  redeemed  after  twenty  years. 

Sir  Joseph  Jekyll  held,  that  decreeing  a  redemption  would  be 
no  wrong  or  hardship  to  the  party,  for  he  would  have  a  greater 
interest  than  the  law  then  allowed ;  that  the  not  decreeing  a 
redemption  would  be  establishing  a  very  great  imposition  ;  and 
though  absolute  conveyances  and  defeasances  were  formerly  much 
used  in  mortgages,  yet  the  same  was  left  off  as  dangerous, 
118  *  *  by  losing  the  defeasance,  which  was  avoided  by  being 
in  the  same  deed ;  that  there  was  sufficient  for  redemp- 
tion by  the  declaration  in  the  will,  where  the  mortgagee  called  it 
a  mortgage.  Lord  Commissioner  Gilbert  was  of  the  same  opin- 
ion, and  a  redemption  was  decreed,  (a) 

74.  In  a  modern  case,  Lord  Thurlow  said,  that  a  man  taking 
notice  by  a  will,  or  any  other  deliberate  act,1  that  he  is  a  mort- 
gagee, will  take  the  case  out  of  the  rule,  that  a  mortgagor  shall 
not  redeem  after  twenty  years,  (b) 

75.  Where  the  mortgagee  submits  to  be  redeemed,  no  length  of 
time  will  operate  as  a  bar  to  redemption. 

76.  A  bill  was  brought  to  redeem,  where  the  mortgagee  had 
been  in  possession  for  twenty-five  years.  The  defendant,  as  it 
was  a  family  affair,  submitted  to  be  redeemed,  notwithstanding 
the  length  of  time.  Lord  Hardwicke  said,  he  saw  no  color  for 
redemption  :  but,  on  the  defendant's  submission,  he  decreed  an 
account  of  what  was  due,  and  directed  the  plaintiff  to  pay  the 
same  in  six  months  after  the   Master's  report,  whereupon  the 

(a)  Orde  v.  Smith,  Sel.  Ca.  in  Cha.  9. 

(6)  Perry  r.  Marston,  2  Bro.  C.  C.  397.  Whiting  v.  White,  2  Cox,  R.  290.  Recks  v. 
Postlethwaite,  Cooper,  R.  161.    Hodle  v.  Healey,  6  Mad.  181. 


1  As,  by  a  recital  in  a  deed.     Price  v.  Copner,  1  Sim.  &  Stu.  347.    Or,  by  any 
written  memorandum.     Quint  v.  Little,  4  Greenl.  495. 


Title  XV.     Mortgage.     Ch.  III.  s.  76—81.  627 

defendants  were  to  convey ;  but,  in  default,  the  bill  was  to  be 
dismissed  without  costs,  (a) 

77.  Where  no  particular  time  is  appointed  for  the  payment  of 
mortgage  money,  as  in  the  case  of  Welsh  mortgages?  a  re- 
demption will  be  decreed  at  any  time ;  for  it  is  the  duty  of  the 
courts,  both  of  law  and  equity,  to  effectuate  the  agreement  of 
the  parties. 

78.  On  a  bill  to  redeem  a  mortgage,  the  defendant  demurred, 
because  the  mortgage  was  sixty  years  old  :  but  the  demurrer  was 
overruled,  it  appearing  to  have  been  agreed  that  the  mortgagee 
should  enter  and  hold  till  he  was  satisfied,  which  was  in  the 
nature  of  a  "Welsh  mortgage  ;  and  in  such  a  case,  length  of  time 
was  no  objection,  (b) 

79.  One  Davids  made  a  mortgage  of  lands  in  Wales  by  lease 
and  release,  to  one  Reynolds  and  his  heirs,  for  securing  =£300. 
The  proviso  was,  that  if  Davids,  his  heirs  or  assigns,  should,  at 
Michaelmas,  1702,  or  any  Michaelmas  following,  pay  to  Reynolds, 
his  heirs  or  assigns,  the  sum  of  .£300,  and  all  arrears  of  rent  or  in- 
terest which  should  be  then  due,  the  conveyance  was  to  be  void. 

It  was  decreed  that  this  was  in  the  nature  of  a  condi- 
tional *  purchase,  subject  to  be  defeated  on  payment,  by  *119 
the  mortgagor  or  his  heirs,  of  the  sums  stipulated,  on  any 
Michaelmas-day,  at  the  election  of  the  mortgagor  or  his  heirs;  so 
that  there  was  an  everlasting  subsisting  right  of  redemption, 
descendible  to  the  heirs  of  the  mortgagor,  which  could  not  be 
forfeited  at  law,  like  other  mortgages  ;  therefore  there  could  be 
no  equity  of  redemption,  or  any  occasion  for  the  assistance  of  a 
court  of  equity ;  but  the  plaintiffs  might,  even  at  law,  defeat  the 
Conveyance,  by  performing  the  terms  and  conditions  of  it ;  which 
were  not  limited  to  any  particular  time,  but  might  be  performed 
on  any  Michaelmas-day  to  the  end  of  the  world,  (c) 

80.  This  perpetual  right  of  redemption  may,  however,  be  lost 
by  a  subsequent  agreement. 

81.  Robert  Hartpole,  in  consideration  of  £600,  conveyed  cer- 

(«)  Proctor  v.  Oates,  2  Atk.  140.  Whiting  u.  White,  Coop.  R.  1.  Hodle  ?•.  Healy,  1  Ves. 
&  B.  53. 

(&)  Orde  v.  Henning,  1  Vera.  418. 

(c)  Howell  v.  Price,  Prec.  in  Cha.  423.     1  P.  Wms.  291. 

1  See  ante,  ch.  1,  §  19,  note 


628  Title  XV.     Mortgage.     Ch.  III.  s.  81—83. 

tain  lands  by  feoffment  to  Oliver  Walsh  in  fee,  subject  to  re- 
demption, on  payment  of  the  money,  at  any  last  day  of  July  or 
December.  By  a  subsequent  deed,  Hartpole,  in  consideration  of 
£2300,  conveyed  the  premises  in  the  former  deed,  and  also  other 
premises,  to  Walsh  ;  and  covenanted,  for  himself  and  his  heirs, 
that  whenever  Walsh,  his  heirs  or  assigns,  should  give  him 
eighteen  months'  notice  in  writing,  requiring  payment  of  the 
said  £2300,  that  then  Hartpole,  his  heirs  or  assigns,  should  pay 
the  said  £2300  within  eighteen  months  after  such  request.  After 
a  period  of  one  hundred  years  had  elapsed,  the  heir  of  the  mort- 
gagor filed  a  bill  for  redemption,  which  was  dismissed  ;  and  the 
decree  of  dismissal  affirmed  by  the  House  of  Lords,  upon  the 
ground,  I  presume,  which  is  stated  in  the  printed  reasons ;  that 
the  second  mortgage  deed,  comprising  all  the  mortgaged  premises, 
put  it  in  the  power  of  the  mortgagee  or  his  representatives  to 
ascertain  and  limit  the  time  of  redemption,  by  demanding  the 
mortgage  money ;  and  such  demand  was  admitted  to  have  been 
made  by  the  son  of  the  mortgagee  ;  therefore,  from  that  time, 
the  mortgage,  whatever  it  was  originally,  became  of  such  a  na- 
ture, as  made  the  equity  of  redemption  liable  to  a  foreclosure, 
either  by  a  decree,  or  great  length  of  time,  (a) 

82.  Where  lands  are  conveyed  to  a  person  till,  by  perception 
of  the  rents  and  profits,  he  is  satisfied  his  principal  and  interest, 

no  length  of  time  will  bar  the  redemption. 
120  *         83.  *  One  Palmer,  by  lease  and  release  and  fine,  in  1699, 

conveyed  two  houses  to  Hambly  and  his  heirs,  until  he 
should  receive  by  the  rents  and  profits  thereof  £50,  then  to  the 
use  of  James  Palmer  for  life,  &c.  The  mortgagee  entered  and 
continued  in  possession  upwards  of  forty  years.  Upon  a  question 
whether  these  two  houses  were  then  redeemable,  Lord  Hard- 
wicke  held  they  were,  for  that  no  bar  arose  from  the  length  of 
time.  He  said  there  was  no  doubt,  if  this  mortgage  had  been 
made  in  the  common  form,  and  subject  to  a  forfeiture  upon  non- 
payment, the  length  of  time  would  have  been  a  bar ;  the  courts 
of  law  and  equity  squaring  their  rules  by  the  Statute  of  Limita- 
tions. But  this  was  a  conveyance  of  the  inheritance  for  securing 
the  sum  of  £50  advanced  by  Hambly,  in  trust  that  he  should 
continue  in  possession  till,  by  perception  of  the  rents  and  profits, 
he   should  be  satisfied  his  principal  and  interest.     There  never 

(a)  Hartpole  v.  Walsh,  5  Bro.  Pari.  Ca.  267. 


Title  XV.     Mortgage.     C/i.  III.  5.  83—86.  629 

could  be  a  forfeiture  under  this  deed,  for  the  mortgagee  was  only 
in  the  nature  of  a  tenant  by  elegit.  As  soon  as  his  principal  was 
satisfied  by  being  paid  off,  or  by  perception  of  the  rents  and 
profits,  the  estate  ceased  in  Hambly,  and  Palmer  or  his  repre- 
sentatives might  have  maintained  an  ejectment.  Nor  would  any 
bar  have  arisen  from  the  length  of  time,  unless  the  Statute  of 
Limitations  had  run,  by  the  mortgagee's  continuing  in  posses- 
sion twenty  years  after  the  money  had  been  paid  off.  He  said 
he  did  not  see  this  case  at  all  differed  from  a  Welsh  mortgage, 
though  he  did  not  say  but  there  were  circumstances  which  might 
create  a  bar,  even  in  that  case.  But  in  common  Welsh  mort- 
gages, on  tendering  principal  and  interest,  they  might  come  into 
the  Court  of  Chancery  at  any  time,  (a) 

*Lord  Hardwicke  concluded  with  declaring  that  the  *121 
plaintiff  was  entitled  to  redeem,  upon  the  common  terms 
of  paying  principal,  interest,  and  costs ;  and  to  have  an  account 
of  what  had  been  received,  and  what  remained  due ;  and  was 
not  obliged  to  bring  an  ejectment  for  the  possession,  but  should 
have  a  decree  for  it,  after  the  mortgage  was  reported  to  be 
satisfied,  (b) 

84.  Where  the  mortgagor  continues  in  possession,  [and  no  ac- 
knowledgment of  the  debt  nor  payment  of  interest  by  him  for 
twenty  years,  the  mortgagee  will  be  barred  upon  the  presumption 
of  satisfaction,  (c) 

85.  In  an  early  case  it  was  decided  that  if  the  mortgagor  was 
in  possession  of  any  part  of  the  mortgaged  premises,  he  should  be 
admitted  to  redeem  the  whole,  though  the  mortgagee  was  in  pos- 
session of  the  other  part  for  more  than  twenty  years  without  any 
payment  of  interest  by  the  mortgagor  to  him.] 

86.  The  case  was  Rakestraw  v.  Brewer,  where  a  person  in 
1687  mortgaged  a  set  of  chambers  in  Gray's  Inn,  but  continued 
in  possession  of  the  whole  until  1700,  at  which  time  an  order  of 
the  Bench  was  made,  to  deliver  possession  to  the  mortgagee, 
who  entered  into  part ;  but,  as  to  the  remainder,  the  mortgagor 
continued  in  possession  until  1708,  leaving  the  plaintiff  an  infant, 
A  bill  was  brought  to  redeem  in  1726.  It  was  so  decreed  at 
the  Rolls,  and  affirmed  by  Lord  King,  who  said  nothing  was 

(a)  Yates  r.  Hamblv,  1  Atk.  360.  (&)  Doc  v.  Reed,  5  Bar.  &  Aid.  232. 

(c)  Christopher  i\  Sparko,  2  Jac.  &  Walk.  223;  and  see  Cholmondeley  v.  Clinton,  1  Jac. 
&  Walk.  191.     Hall  V.  Doe,  5  Bar.  &  Aid.  687. 
53* 


630  Title  XV.     Mortgage.     Ch.  III.  s.  86—89. 

more  clear,  than  that  if  the  mortgagor  was  in  possession  of  any 
part,  he  should  be  permitted  to  redeem  the  whole,  as  being  in 
possession  thereof ;  and  part  he  could  not,  separately  from  the 
whole  ;  therefore  he  should  redeem  the  whole,  (a) 

87.  [Notwithstanding  the  preceding  case,  it  does  not  appear 
to  be  settled,  that  because  a  mortgage  is  redeemable  as  to  part 
of  the  premises,  that,  therefore,  in  no  case  shall  the  equity  of 
redemption  be  barred  as  to  another  part.  A  contrary  doctrine 
may  be  inferred,  from  a  case  cited  by  Lord  Loughborough,  C, 
in  Lake  v.  Thomas,  as  follows :  "  There  was  a  very  long  case, 
I  think,  before  Sir  Thomas  Clark,  about  redemption.  The  title 
of  the  estate  had  come  into  two  different  hands  ;  the  part  in  the 
hands  of  one  family  was  held  irredeemable  :  as  to  the  other,  the 

mortgagee  had  kept  accounts,  and  I  think  there  was  a 
122*    *  devise  of   it  as  a  mortgage:    and   the  redemption  was 
open  as  to  that,  after  a  number  of  years."]  (b) 

88.  Where  any  species  of  fraud  has  been  practised  by  a  mort- 
gagee, at  the  time  when  the  mortgage  was  made,  a  court  of 
equity  will  interfere,  and  give  relief,  notwithstanding  a  possession 
of  twenty  years,  (c) 

89.  Thus,  in  the  case  of  Orde  v.  Smith,  which  has  been 
already  stated,  it  was  expressed  that  the  redemption  should  be 
with  the  mortgagor's  own  money.  And  the  Master  of  the  Rolls 
said,  that  the  words  in  the  defeasance,  however  fettered,  signi- 
fied nothing,  where  the  money  was  to  be  repaid ;  for  the  bor- 
rower being  necessitated,  and  so  under  the  lender's  power,  the 
law  made  a  benign  construction  in  his  favor.  But  this  was  a 
fraud  in  its  creation,  and  in  such  case  was  redeemable  after  any 
length  of  time,  (d) 2  f 

(a)  Select  Ca.  in  Chan.  55.  (b)  3  Ves.  22. 

(c)  (Marks  v.  Pell,  1  Johns.  Ch.  R.  594.)  (d)  Ante,  §  73.    2  Crom.  &  Jer.  481. 

1  Upon  a  decree  to  pay  the  mortgage  debt,  whether  on  a  bill  to  redeem  or  a  bill  to 
foreclose,  a  short  period  is  usually  allowed  to  the  debtor  within  which  to  pay  the  money. 
Where  this  period  is  not  regulated  by  statute,  the  usual  course  in  Chancery  on  a  bill  to 
redeem,  is  to  allow  six  months  after  the  debt  is  liquidated  by  the  Master's  report. 
Novosielski  v.  Wakefield,  17  Ves.  417  ;  Perine  v.  Dunn,  4  Johns.  Ch.  R.  140.  And 
this  period  will  not,  ordinarily,  be  enlarged,  on  motion  for  further  time.  Ibid ;  Brinck- 
erhoff  v.Lansing,  4  Johns.  Ch.  R.  65,   76;  Thorpe  v.  Gartside,  2  Y.  &  Col.   730; 

t  [Where  mortgagees  become  lunatic,  their  committees  are  empowered  to  convey  by 
the  Stat.  1  Will.  4,  c.  60,  §  3,  under  the  direction  of  the  Lord  Chancellor.] 


Title  XV.     Mortgage.    Ch.  III.  s.  89.  631 

Eyre  v.  Hanson,  2  Beav.  478  :  Faulkner  v.  Bolton,  7  Sim.  319.  But  on  a  bill  for  a  strict 
foreclosure,  vesting  the  estate  absolutely  in  the  mortgagee,  the  time  may  be  enlarged  from 
six  months  to  six  months,  upon  equitable  terms ;  but  this  indulgence  is  not  ordinarily 
granted  in  eases  of  a  decree  for  the  sale  of  the  premises  according  to  the  usual  practice 
of  the  Court.     Perine  v.  Dunn,  supra. 

The  rule  to  allow  six  months  is  also  applied  on  a  bill  by  an  equitable  mortgagee. 
Parker  v.  Housefield,  2  My.  &  K.  419. 


632 


CHAP.  IV. 


PAYMENT    OF  THE    MORTGAGE    MONEY   AND    INTEREST. 


Sect. 


1. 

The    Personal    Estate    first 
liable. 

Sect.  53. 

4. 

Even  in  Favor  of  a  Devisee. 

9. 

A  Disposition  of  the  Personal 

Estate  will  not  alter  this 

54. 

Rule. 

io. 

Nor  a  Charge  on   the  Real 

Estate. 

56. 

15. 

Lands  devised  for  Payment  of 

Debts  are  applied. 

58. 

19. 

And  also  Lands  descended. 

02. 

21. 

The  Personal  Estate  may  be 

exempted. 

64. 

25. 

A  Specific  Gift  of  a  Chattel 

ivill  exonerate  it. 

05. 

27. 

The    Personal     Estate     not 

liable. 

66 

28. 

I.   Where  the  Debt  was  con- 
tracted by  another. 

67 

30. 

Though  there  be  a   Covenant 
to  pay  it. 

09 

34. 

Or   a    Charge   on   the   Real 
Estate. 

71 

36. 

II.   Where  an  Equity  of  Re- 

demption is  purchased. 

73 

41. 

Unless  the  Purchaser  makes 

the  Debt  his  own. 

78 

43. 

Mortgages  by  Husband  and 
Wife. 

[Effect  upon  the  Wife's  right 
where  the  Equity  of  Re- 
demption is  not  reserved, 
to  her. 2 

Contribution  between  Tenant 
for  Life  and  Remainder- 
man. 

Wliere  Tenant  for  Life  or  in 
Tail  pays  off  a  Mortgage. 

Interest. 

Interest  upon  Interest  not 
allowed. 

Exceptions: — 1.  Where  a 
Mortgage  is  assigned. 

2.  Where  there  is  an  Accoun  t 
settled  by  the  Parties. 

Or  settled  by  a  Master. 

3.  Where  the  Time  is  en- 
larged. 

4.  Where  the  Parties  are  In- 
fants. 

[  Interest  by  Mortgagee  in 
Possession  after  Mortgage 
satisfied.] 

Who  are  bound  to  pay  In- 
terest. 

Mortgage  Money  is  payable 
to  the  Executor. 


Section  1.  It  is  a  rule  in  equity,  where  a  person  dies,  leaving 
a  variety  of  funds,  one  of  which  must  be  charged  with  a  debt, 
that  the  fund  which  received  the  benefit^  by  contracting  the  debt, 
shall  make  satisfaction.  It  has,  therefore,  been  long  settled, 
that  if  a  person  borrows  money  on  mortgage,  and  dies, 
124  *       leaving  a  real  and  personal  *  estate,  without  specifically 


Title  XV.     Mortgage.     Ch.  IV.  s.  1—4.  633 

charging  either  of  them  with  the  payment  thereof,  his  per- 
sonal estate  shall  be  first  applied  towards  the  payment  of  the 
mortgage  ;  because  it  was  increased  by  the  money  borrowed.1 
The  executor  of  a  mortgagor  is,  therefore,  in  general,  compel- 
lable to  redeem  a  mortgage  for  the  benefit  of  the  heir,  even  though 
there  be  no  covenant  in  the  mortgage  for  the  payment  of  the 
money,  (a) 

2.  A  father  and  son  joined  in  a  mortgage  of  the  father's  estate; 
the  father  received  the  money,  and  the  son  conveyed  in  considera- 
tion of  105.  There  was  no  covenant  in  the  mortgage  for  pay- 
ment of  the  money.  The  bill  was  brought  to  make  both  the 
real  and  personal  assets  of  the  father  and  son  liable  to  the  mort- 
gage money,  the  estate  mortgaged  being  subject  to  prior  incum- 
brances. 

Lord  Hardwicke  said  it  had  been  determined  that  the  personal 
assets  were  liable,  though  there  were  no  covenant  in  the  deed  for 
payment  of  the  mortgage  money,  because  there  was  a  debt  con- 
tracted by  the  borrowing.2  This  demand  went  a  step  further, 
seeking  to  charge  the  real  assets  of  the  father,  in  the  hands  of 
the  son,  which  were  not  liable  in  the  hands  of  the  heir,  even  by 
a  bond  or  covenant  of  his  ancestor,  unless  the  heir  was  specially 
named.  As  to  the  son,  his  assets  were  no  way  liable,  for  he  con- 
veyed only  in  consideration  of  10s.,  and  had  no  part  of  the  money, 
consequently  was  no  debtor ;  and  neither  his  real  nor  personal 
assets  were  bound,  (b) 

3.  In  the  case  of  Howell  v.  Price,  it  was  contended  that  the 
personal  estate  of  the  mortgagor  was  not  subject  to  the  payment 
of  the  mortgage,  because  it  was  a  conditional  sale  between  the 
mortgagor  and  mortgagee,  that  the  mortgagee  should  have  the 
land  until  the  mortgagor  or  his  heirs  should  repay  the  money ; 
that  it  was  in  the  election  of  the  mortgagor  whether  he  would 
pay  it  or  not ;  nor  would  any  action  of  debt  lie  for  it.  The  Court, 
however,  decreed,  that  the  personal  estate  of  the  mortgagor  should 
be  applied  in  payment  of  the  mortgage,  (c) 

4.  The  personal  estate  is  liable  to  the  payment  of  a  mortgage 

(a)  Cope  v.  Cope,  1  Salk,  449.  Bateman  v.  Bateman,  1  Atk.  421.  Lanoy  v.  Athol,2  Atk. 
444.     Lord  Portsmouth  v.  Lady  Suffolk,  1  Vez.  31. 

(6)  Lloyd  v.  Thursby,  1743,  MS.  Rep.  (c)  Ante,  c.  3,  §  79.     

i  See  1  Story,  Eq.  Jur.  §  571—577,  where  this  subject  is  fully  treated. 
2  See  ante,  ch.  1,  $  15,  note. 


634  Title  XV.     Mortgage.     Ch.  IV.  <?.  4—10. 

in  favor  of  a  devisee,  or  hceres  factus,  as  well  as  in  favor  of  an 
hceres  natus,  although  there  be  no  bond  or  covenant  for  payment 
of  the  mortgage  money. 

5.  Thus,  it  was  declared  by  Lord  Nottingham,  in  1681,  "  that 

not  only  the  heir,  in  case  he  be  charged  with  debts  of  the 
125  *     *  ancestor,  but  a  devisee  of  the  land,  shall  be  unburdened 

too  of  a  debt  lying  on  the  land,  by  the  personal  estate  in 
the  hands  of  the  executor  or  administrator  ;  and  so  shall  a  devisee 
of  a  mortgage."  (a) 

6.  Thomas  King  having  freehold  and  copyhold  lands,  mort- 
gaged the  copyhold  for  £350.  He  afterwards  devised  the  same 
copyhold  to  his  nephew  and  his  heirs  ;  and,  after  all  his  debts 
paid,  he  devised  the  rest  of  his  estate,  real  and  personal,  to  his 
son  and  his  heirs,  and  appointed  him  his  executor.  It  was  de- 
termined by  Lord  Talbot,  that  the  personal  estate  of  the  mort- 
gagor was  liable  to  the  payment  of  this  mortgage,  though  there 
was  no  covenant  or  bond  for  the  payment  of  it.  (6) 

7.  Lord  Hardwicke  states  it  to  have  been  determined  by  Lord 
Nottingham,  that  a  devisee  of  part  of  the  real  estate  was  entitled 
to  have  a  mortgage  paid  off  out  of  the  personal  estate,  and  that 
this  opinion  had  been  followed  ever  since,  (c) 

8.  Though  the  estate  in  mortgage  be  devised,  subject  to  the 
incumbrance,  yet  the  personal  estate  will  be  applicable  to  the 
payment  of  the  mortgage,  especially  when  there  are  any  circum- 
stances indicating  such  an  intention,  (d) 

9.  It  has  been  stated  in  title  1,  s.  58,  that  a  testamentary 
disposition  of  the  personal  estate  will  not  exempt  it  from  the 
payment  of  debts ;  therefore,  in  a  case  of  this  kind,  the  heir  or 
devisee  will  be  entitled  to  have  a  mortgage  paid  off  out  of  the 
personal  estate. 

10.  Where  a  testator  charges  his  lands  with  the  payment  of 
his  debts,  this  will  not  exonerate  his  personal  estate ;  for  such  a 
charge  can  only  be  intended  for  the  purpose  of  creating  an 
additional  fund,  in  case  the  personal  estate  should  not  be 
sufficient.f 

(a)  Popley  ».  Popley,  2  Cha.  Ca.  84.     1  Vera.  36.     Cases  Temp.  Finch,  401. 

(b)  King  v.  King,  3  P.  Wms.  359.  (c)  2  Atk.  426. 
{d)  Serle  v.  St.  Eloy,  infra,  $  16. 

t  [On  the  primary  liability  of  the  personal  estate  to,  and  also  its  exoneration  from 
the  payment  of  debts  and  legacies,  see  Roper's  Legacies,  edit.  1828,  Vol.  I.  ch.  12,  s.  3, 
p.  595.] 


Title  XV.     Mortgage.     C/i.  IV.  s.  11—16.  635 

11.  Lord  Hardwicke  has  said — "  I  know  of  no  authority  where 
the  words,  I  make  my  real  estate  liable  to  pay  my  debts,  will 
exempt  the  personal  estate,  without  any  special  exemption  of 
personal  estate ;  nor  has  the  Court  ever  said  that  personal  estate 
shall  be  applied  only  to  pay  legacies,  and  not  the  debts;  nor 
will  making  a  particular  estate  in  land  liable  to  pay  debts  exon- 
erate the  personal  estate,  because  it  is  the  natural  fund  for 

*  payment  of  debts.     Suppose  a  man  devises  a  real  estate     *  126 
liable  to  the  payment  of  debts,  and  subject  to  those  debts 
gives  it  over  to  another,  or  what  remains  after  payment  of  debts, 
which  is  all  one ;  if  there  are  not  express  words  to  exempt  the 
personal  estate,  it  shall  be  first  applied."  (a) 

12.  Where  a  term  of  years  is  created  for  the  purpose  of  raising 
a  fund  to  pay  debts  and  legacies,  yet  this  will  not  exempt  the  per- 
sonal estate  from  being  first  applied  in  payment  of  a  mortgage. 

13.  A  person  demised  lands  to  trustees  for  five  hundred  years, 
upon  trust  for  himself  for  life  ;  after  his  death,  upon  trust,  out  of 
the  rents  and  profits,  to  pay  his  debts,  legacies,  &c.  It  was  de- 
creed that  the  personal  estate  should  be  applied  in  exoneration 
of  the  real,  (b) 

14.  It  is  the  same  where  a  provision  is  made,  by  way  of  trust 
of  the  inheritance  of  lands,  to  pay  debts ;  the  personal  estate  will 
still  be  liable ;  therefore,  where  lands  were  devised  to  a  person 
for  payment  of  debts,  the  personal  estate  was  directed  to  be  first 
applied  for  that  purpose,  (c) 

15.  Where  the  personal  estate  is  deficient,  the  money  arising 
from  the  sale  of  lands  devised  for  payment  of  debts,  will  be  ap- 
plied in  satisfaction  of  a  mortgage. 

16.  A  testator  began  his  will  by  directing  that  his  executor 
should  pay  and  discharge  all  his  just  debts,  and  that  he  should 
raise  sufficient  to  pay  the  same.  He  then  devised  his  manor  at 
Godalmin  to  Jane  Styles  and  her  heirs,  at  the  age  of  twenty-one, 
or  marriage ;  subject,  nevertheless,  to  the  incumbrances  that 
were  or  should  be  upon  it  at  the  time  of  his  decease.  In  the 
mean  time,  and  until  she  should  arrive  at  her  said  age  or  mar- 
riage, the  rents,  issues  and  profits  to  be  paid  by  his  executor  into 
the    hands   of   her  father    or   mother.     He  then  devised  to    his 

(«)  3  Atk.  202.     2  Vcs.  447.     11  Ves.  186. 

(&)  Cook  v.  Gwavas,  9  Mod.  187.    1  Bro.  C.  C.  454.    1  Mer.  227. 

(c)  I.ovel  v.  Lancaster,  2  Vern.  183. 


636  Title  XV.     Mortgage.     Ch.  IV.  s.  16. 

brother,  Leonard  Child,  and  his  heirs,  the  reversion  of  the  manor 
of  "W.,  subject,  nevertheless,  to  the  payment  of  such  of  his  debts 
as  should  remain  unpaid.  All  the  rest  of  his  real  and  personal 
estate,  not  therein  before  specifically  disposed  of,  he  devised  to 
John  St.  Eloy,  his  heirs  and  assigns,  in  trust  to  sell  the  same, 
and  thereout  to  pay  his  debts  and  general  legacies.  In  case 
there  should  be  any  deficiency,  and  that  any  of  his  debts  and 
legacies  should  remain  unpaid,  then  he  charged  the  same  on  the 
reversion  and  inheritance  of  the  manor  of  W. ;  and  thereby 
directed  the  said  Leonard  Child  and  his  heirs  to  pay  off  the 

same. 
127  *         *  It  was  said  that  the  lands  in  Godalmin,  which  were 
mortgaged  for  X500  to  one  Hunt,  being  devised  subject  to 
the  incumbrances  thereon,  the  devisee  must  take  them  cum  onere, 
and  be  contented  to  pay  off  the  mortgage. 

Sir  J.  Jekyll  said,  the  devise  of  the  estate,  subject  to  the 
incumbrance^  was  no  more  than  what  was  implied,  for  the  testator 
could  not  do  it  otherwise.  "When  the  testator  devised  other 
lands  to  pay  his  debts,  that  must  be  intended  all  his  debts ;  con- 
sequently the  debt  by  mortgage  of  Godalmin  was  part  of  those 
debts,  which  were  to  be  paid  off  out  of  the  money  arising  by  the 
sale  of  the  trust  estate.  This  was  the  stronger  by  the  testator's 
having  appointed  the  rents  and  profits,  during  the  infancy  of  his 
god-daughter,  to  be  paid  to  the  infant's  father,  for  the  sole  use  of 
the  infant,  which  was  as  much  as  to  say,  that  they  should  not  go 
or  be  applied  in  discharge  of  the  mortgage ;  and  although  the 
infant  by  her  own  bill  had  submitted  to  pay  off  the  mortgage, 
yet  his  Honor  said  he  must  take  care  of  her,  and  not  suffer  her 
to  be  caught  by  any  mistake  of  her  agent ;  wherefore  the  infant 
was  directed  to  amend  her  bill. 

The  bill  having  been  amended,  and  the  cause  coming  on  to  be 
heard  before  Sir  J.  Jekyll,  he  declared  that  all  the  debts  and 
general  legacies  of  the  testator  were  by  his  will  to  be  paid  out 
of  his  personal  estate,  and  the  real  estates  devised  to  the  defend- 
ants, St.  Eloy  and  Child ;  and  that  the  mortgage  of  the  defend- 
ant Hunt,  on  the  estate  devised  to  the  plaintiff,  was  to  be  taken 
as  one  of  those  debts.  This  decree  was  affirmed  by  Lord 
King,  (a) 

(a)  Serle  v.  St.  Eloy,  2  P.  Wms.  386. 


Title  XV.     Mortgage.     Ch.  IV.  s.  17—19.  637 

17.  A  testator  devised  his  lands  at  H.  to  Richard  May  in  tail, 
remainder  over.  Those  lands  being  then  in  mortgage  for  .£1300, 
he  devised  other  lands  to  Thomas  May,  subject,  however,  to  the 
payment  of  his  debts,  in  case  his  personal  estate,  and  other 
estates  devised  for  that  purpose,  should  not  prove  sufficient  to 
satisfy  all  his  debts.  Lord  Hardwicke  decreed  that  the  .£1300 
must  be  paid,  as  the  debt  of  the  testator,  out  of  the  personal 
estate ;  or,  if  that  should  prove  deficient,  then  out  of  the  real 
estate  so  devised,  (a) 

18.  Sir  R.  Worsley,  being  seised  in  fee  of  several  estates,  sub- 
ject to  mortgages  which  he  had  -made ;  and  being  also  seised  in 
fee  of  estates  in  the  Isle  of  Wight,  made  his  will,  reciting  him- 
self to  be  seised  of  the  estates,  subject  to  incumbrances,  and 
devised  the  mortgaged  estates  in  strict  settlement;  and  the 

*  estates  in  the  Isle  of  Wight  to  trustees  for  twenty-one  *  128 
years,  in  trust  to  pay  several  annuities ;  after  payment 
thereof,  to  pay  all  his  bond  and  book  debts,  in  case  his  personal 
estate  should  not  be  sufficient  to  pay  the  same,  and  also  all  his 
legacies  and  annuities  ;  subject  thereto,  and  such  other  payments 
as  they  should  make  to  any  other  person,  by  virtue  of,  or  in 
pursuance  of,  any  deed  by  him  alone,  or  together  with  his  son, 
executed.  He  directed  the  trustees  to  account  for  all  the  remain- 
der of  the  rents  and  profits  of  the  premises,  so  devised  to  them 
for  the  said  term,  to  his  cousins  J.  and  R.  Worsley. 

Lord  Thurlow  decreed  that  the  rents  and  profits  of  the  trust 
term  should  be  applied  in  discharge  of  the  mortgages.  He  said 
he  made  his  decree  with  great  reluctance,  from  finding  himself 
obliged  to  charge  the  trust  term  of  twenty-one  years  with  the 
payment  of  the  incumbrances.  Had  the  question  stood  upon 
the  words  bond  and  book  debts  only,  it  might  have  admitted  of 
some  doubt;  but  the  misfortune  was,  that  by  the  subsequent 
clause,  Sir  Robert  had  directed  his  trustees  to  pay  all  his  debts, 
annuities,  legacies,  &c. ;  and  a  still  greater  misfortune  was,  that 
he  had  made  his  executors  executors  in  trust,  and  had  made  the 
term  a  joint  fund  with  his  personal  estate,  (b) 

19.  Where  an  estate  in  mortgage  is  devised,  and  another  estate 
descends  from  the  testator  to  his  heir,  the  estate  descended  shall 
be  applied  in  payment  of  the  mortgage. 

(a)  Bartholomew  ft  May,  1  Atk.  487.  (b)  Tweedale  v.  Coventry,  1  Bro.  C.  C.  240. 

VOL.  I.  54 


638  Title  XV.     Mortgage.     Ch.  IV.  s.  20. 

20.  A  person  being  seised  in  fee  of  some  lands  which  were 
mortgaged  to  A,  who,  about  a  month  before  the  mortgage  made, 
had  taken  a  bond  for  the  same  debt,  and  having  also  a  lease  for 
three  lives,  devised  the  mortgaged  premises,  and  the  lease,  to  his 
wife,  whom  he  also  made  his  executrix.  After  his  will  made,  he 
purchased  the  reversion  of  the  estate  which  he  held  in  lease, 
whereby  the  devise  became  revoked,  as  to  those  lands ;  and  died 
without  any  republication  or  alteration  of  his  will. 

Upon  a  bill  brought  by  the  heir  at  law  for  a  delivery  of  the 
deeds  and  writings,  and  an  account  of  the  mesne  profits  of  the 
estate  descended  to  him,  it  was  insisted  for  the  wife,  who  was 
devisee  of  the  mortgaged  premises,  that  the  personal  estate  being 
deficient,  she  might,  as  hceres  /actus,  throw  the  burden  upon  that 
part  of  the  real  estate  descended  to  the  heir  at  law,  by  the  mere 
accident  of  her  husband's  purchasing  the  fee  after  the  will  made  ; 
who,  being  ignorant  of  the  operation  of  law,  intended  her 
129*  the  *  benefit  of  all  his  real  estate;  and  that  she  should 
therefore  hold  the  estate  devised  to  her,  free  from  any 
charge  ;  and  the  heir  to  satisfy  the  mortgage  out  of  the  real 
assets  descended  to  him  :  pretending  that  this  was  originally 
a  bond  debt,  and  the  mortgage  but  a  subsidiary  or  collateral 
security. 

Lord  Hardwicke  at  first  was  clearly  of  opinion  that  she  had 
no  right  to  be  relieved  against  the  heir ;  that  the  bond  and  mort- 
gage were  but  one  security  given  for  one  and  the  same  debt ; 
and  that  whether  the  estate  descended  to  the  heir  by  an  omis- 
sion of  the  testator  to  dispose  of  it,  or  from  the  devise  being  void, 
or  from  any  other  accident,  it  was  still  the  same  thing.  He  said 
that  all  the  cases  where  the  hceres  /actus  had  the  assistance  of 
the  Court  to  exonerate  his  estate  were  against  the  representatives 
of  the  personal  estate,  thereby  to  put  him  on  an  equal  foot  with 
the  heir  at  law,  but  not  to  give  him  the  preference  as  in  this 
case,  where  the  competition  was  between  one  part  of  the  real 
assets  and  the  other  ;  that  this  was  the  first  instance  wherein  the 
heir  was  attempted  to  be  charged ;  that  the  devisee  must  take 
the  estate  as  it  came  to  her,  charged  by  the  testator ;  and  though, 
where  but  part  of  the  estate  was  devised  away,  and  the  other 
part  descended  to  the  heir  at  law,  the  creditor  might,  upon  his 
bond  and  covenant,  sue  the  heir  at  law  alone,  without  naming 


Title  XV.     Mortgage.     Ch.  IV.  s.  20—22.  639 

the  devisee,  yet  that  was  because  the  descent  was  not  entirely 
broke,  as  it  was  where  the  whole  was  devised  away. 

The  cause  was  reheard ;  and  Lord  Hardwicke,  after  having 
taken  a  year  to  consider  it,  changed  his  opinion,  and  gave  judg- 
ment in  favor  of  the  devisee ;  concluding  in  the  follow- 
ing language  :-r-*"  I  have,  after  most  mature  deliberation,  *  135 
altered  my  opinion  in  this  case,  which  I  am  not  ashamed 
to  own,  since  not  to  confess  an  error  is  much  worse  than  to  err. 
The  appearance  of  hardship  against  the  heir  struck  me  at  first ; 
but  this  hardship,  in  a  particular  instance,  must  not  prevail  upon 
the  Court  to  break  into  its  rule  for  marshalling  assets.  And 
though  this  may  be  called  a  new  case,  not  strictly  within  any 
rule,  nor  warranted  by  any  former  precedent ;  yet  must  we  re- 
member that  neither  law  nor  equity  consists  merely  of  cases  and 
precedents,  but  of  general  rules  and  principles,  by  the  reason  of 
which  the  several  cases  coming  before  courts  of  justice,  are  to 
be  governed,  without  distinction  or  exemption  of  any  particular 
case,  from  hardships  peculiar  to  it.  But  there  is  one  circum- 
stance in  the  present  case  which  frees  my  mind  from  any  uneasi- 
ness on  account  of  hardship  upon  the  heir,  which  is,  that  the 
charging  the  lands  descended  to  him  will  bring  things  nearer  to 
the  testator's  intent,  the  whole  being  intended  to  go  to  the  dev- 
isee ;  and  what  has  come  to  the  heir  is  the  mere  effect  of  chance, 
the  accidental  revocation  of  the  will  by  an  act  in  law,  the 
purchase  of  the  reversion  *of  one  estate  after  the  will  *136 
made,  and  the  testator's  dying  without  any  republica- 
tion of  it.  I  declare,  therefore,  that  the  former  decree  must  be 
reversed,  and  that  the  devisee  has  a  right  to  have  the  lands  de- 
scended upon  the  heir  applied  towards  satisfaction  of  the  mort- 
gage." (a) 

21.  It  is,  however,  in  the  power  of  a  mortgagor,  by  his  will,  to 
exempt  his  personal  estate  from  the  payment  of  money  due  by 
him  upon  mortgage,  by  substituting  his  real  estate  in  its  stead. 

22.  I.  S.  devised  all  his  manors  to  trustees  and  their  heirs, 
upon  trust,  immediately  out  of  the  rents  and  profits,  or  by  sale 
or  mortgage  of  the  premises,  or  any  part  thereof,  to  raise  and 
levy  money  for  payment  and  satisfaction  of  all  his  just  debts  ;  if 
there  should  be  a  surplus  of  lands  or  money,  that  to  be  to  his  sis- 

(«)  Galton  v.  Hancock,  2  Atk.  424.     Barnewell  v.  Lord  Cawdor,  3  Mad.  453. 


640  Title  XV.    Mortgage.    Ch.  IV.  s.  22—24. 

ters  jointly,  and  their  heirs ;  and  gave  all  his  personal  estate  to  his 
wife,  whom  he  appointed  executrix.  Lord  Somers  took  notice 
that  the  debts  were  more  than  the  personal  estate  amounted  to  ;  f 
therefore  the  testator  must  have  meant  that  his  wife  should 
have  it  exempt  from  debts,  or  he  meant  nothing ;  and  there  was 
in  this  case  no  room  to  make  a  different  construction,  (a) 

23.  A  testator  devised  his  real  estate  to  be  sold,  and  the  money 
to  arise  from  the  sale  to  be  applied  to  pay  mortgages  and  other 
debts,  the  residue  to  be  added  to  his  personal  estate.  It  was  con- 
tended that  these  words  were  not  sufficient  to  exonerate  the 
personal  estate ;  that,  in  order  to  be  so,  there  must  be  a  destina- 
tion, as  to  the  estate  to  be  sold,  for  the  mere  purpose  of  payment 
of  debts ;  here  was  only  a  direction  in  transitu ;  for  the  words 
did  not  necessarily  imply  that  the  personalty  was  to  be  exoner- 
ated. The  trustees  were  not  under  this  devise  bound  to  sell  the 
estate  immediately,  yet  the  debts  must  be  immediately  paid ;  that 
must  be  out  of  the  personal  estate.  Lord  Kenyon,  M.  R.,  said 
he  had  no  doubt  about  the  case :  the  general  rules  were  very 
clear  that  the  personal  estate  was  the  fund  first  liable  ;  and  that 

the  testator  could  not  exonerate  it  without  substituting 
137*     another  fund.     But  there  was  no  magic  in  *  words;   no 

peculiar  form  of  expression  was  necessary  in  order  to  exon- 
erate the  personal  estate.  If  the  intention  of  the  testator  was 
evident  to  exonerate  the  personalty,  it  must  be  exonerated ;  here 
the  intention  was  beyond  all  doubt.  The  testator  had  directed 
the  residue  to  be  added  to  the  personal  estate ;  but  according  to 
the  construction  contended  for,  that  would  be  gone,  (b) 

24.  In  a  modern  case,  Lord  Thurlow  laid  down  the  following 
rules  respecting  this  doctrine :  "  1st.  That  the  personal  estate 
is  liable,  in  the  first  instance,  to  the  payment  of  debts.  But  in 
exception  to  this,  it  is  agreed  that  the  testator  may,  if  he  pleases, 
give  his  personal  estate  as  against  his  hen,  or  any  other  repre- 
sentative, clear  of  the  payment  of  his  debts ;  and  then  it  becomes 

(a)  Bamfield  v.  "Windham,  Free,  in  Cha.  101.     Lernan  v.  Xewnham,  1  Vez.  51. 
(J)  Webb  v.  Jones,  2  Bro.  C.  C.  60.     1  Cos,  245,  S.  C.      See  Sell.  &  Lef.  544,  per  Lord 
Eedesdale. 

\  [Modern  authorities  have  determined  that  an  inquiry  into  the  state  of  the  property, 
with  a  view  fo  ascertain  the  testator's  intention,  cannot  be  made,  but  that  the  intention 
must  be  collected  from  the  will  alone.  Amb.  40 ;  1  Cox,  9  ;  1  Eden,  39,  43  ;  3  Ves.  113; 
1  Mer.  220.] 


Title  XV.     Mortgage.     Ch.  IV.  s.  24—26.  641 

a  question,  what  is  the  mode  of  expression  to  give  the  personal 
estate,  exempt  from  such  payment ;  when  the  rule  of  law  is,  that 
such  estate  is  first  liable.  Perhaps  it  might  not  have  been  un- 
wise to  have  adopted  the  rule  laid  down  in  Fereyes  v.  Robertson, 
that  the  testator  must  use  express  words  for  that  purpose  ;  but  it 
is  impossible  to  abide  by  the  opinion  given  in  that  case,  consist- 
ently with  the  rules  in  other  cases.  The  second  rule  is,  that 
where  there  is  a  declaration  plain,  that  shall  stand  in  lieu  of 
express  words :  this  rule  has  been  laid  down  so  long,  and  acted 
upon  so  constantly,  that,  if  other  judges  were  to  put  the  con- 
struction of  wills  upon  other  grounds,  how  wise  soever  it  might 
have  been  originally  to  have  done  so,  it  would  be  very  unwise 
to  make  the  administration  of  justice  take  a  course  contrary  to 
former  rules.  Therefore,  if  there  be  a  declaration  plain,  or  mani- 
festation clear,  so  that  it  is  apparent  upon  the  face  of  the  will 
that  there  is  such  a  plain  intention,  the  rule  then  is,  not  to  dis- 
appoint, but  to  carry  such  intention  into  execution ;  but  should 
not  such  intention  manifestly  appear,  there  is  not  a  single  case 
which  does  not  take  it  for  granted  that  the  personal  estate  is  by 
law  the  first  fund  for  the  payment  of  debts."  (a) 

25.  A  mortgagor  may  also,  by  specific  gift  of  a  chattel,  in  his 
will,  exonerate  it  from  the  payment  of  the  money  due  on  a  mort- 
gage ;  [for  although  the  natural  fund  for  the  payment  of  debts  is 
the  personal  estate,  and  the  heir  or  devisee  of  the  real  is  in  gen- 
eral entitled  to  have  the  personal  estate  applied  in  exoneration  of 
incumbrances  affecting  the  former,  yet  the  Court  of  Chan- 
cery *will  not  permit  such  arrangement  to  take  place  *138 
when  it  would  defeat  legatees  of  their  legacies.]  (b)  f  l 

26.  A  person  being  seised  of  a  real  estate  in  fee,  which  he  had 
mortgaged  for  ,£500,  and  possessed  of  a  leasehold,  devised  the 
former  to  his  eldest  son  in  fee,  and  gave  the  latter  to  his  wife, 
and  died,  leaving  debts  which  would  exhaust  all  his  personal 

(a)  Ancaster  v.  .Mayer,  1  Bro.  C.  C.  462.    Bunb.  301.     Bootle  v.  Blundell,  1  Mer.  193, 231. 
Greene  v.  Greene,  4  Mad.  148.     1  Mer.  219,  per  Lord  Eldon. 
(6)  Ryder  v.  Wager,  2  P.  Wms.  329,  335,  and  1  P.  Wms.  730. 


t  [Upon  the  doctrine  of  marshalling  of  assets  in  favor  of  legatees,  see  1  Hop.  Leg. 
806— 840,  cd.  1823.] 

1  The  bequest  in  such  case  is  evidence  of  the  intent  of  the  testator  to  exempt  BO 
much  of  his  personal  estate  from  the  charge  of  the  mortgage. 

54* 


642  Title  XV.     Morteape.     Ch.  IV.  s.  26—31. 


O  "■"£> 


estate,  except  the  leasehold  given  to  his  wife.  The  question  was, 
whether  there  being,  as  usual,  a  covenant  to  pay  the  mortgage 
money,  the  leasehold  premises  devised  to  the  wife  should  be 
liable  to  discharge  the  mortgage.  Sir  J.  Jekyll,  after  taking  time 
to  consider  of  it,  and  being  attended  with  precedents,  decreed 
that,  as  the  testator  had  charged  the  real  estate  by  this  mortgage, 
and,  on  the  other  hand,  specifically  bequeathed  the  leasehold  to  his 
wife,  the  heir  should  not  disappoint  her  legacy,  by  laying  the 
mortgage  debt  upon  it,  as  he  might  have  done,  had  it  not  been 
specifically  devised ;  and  although  the  mortgaged  premises  were 
also  specifically  given  to  the  heir,  yet  he  to  whom  they  were 
thus  devised,  must  take  them  cum  onere,  as  probably  they  were 
intended,  (a) 

27.  The  rule  that  the  personal  estate  shall  be  first  applied  in 
payment  of  mortgages,  is  founded  on  the  principle  that  the  debt 
was  originally  a  personal  debt  of  the  mortgagor,  and  the  charge 
on  the  real  estate  merely  a  collateral  security  ;  but  where  this 
principle  fails,  the  rule  does  not  apply. 

28.  Thus,  where  the  mortgage  debt  was  contracted  by  one  per- 
son, and  the  lands  so  mortgaged  descend  to  another,  his  personal 
estate  will  not  be  liable  to  the  payment  of  the  money. 

29.  Thus,  it  is  laid  down  by  the  Court  of  Chancery  in  the  case 
of  Cope  v.  Cope,  (b)  that  if  a  grandfather  mortgages  his  estate, 
and  covenants  to  pay  the  mortgage  money ;  and  the  land  descends 
to  his  son,  who  dies  without  paying  off  the  mortgage,  leaving  a 
personal  estate  and  a  son  ;  the  intermediate  son's  personal  estate 
shall  not  be  applied  in  payment  of  the  mortgage ;  for  the  debt 
was  not  contracted  by  him,  and  so  his  personal  estate  derived  no 
advantage  from  it. 

30.  A  covenant  to  pay  the  money  due  on  a  mortgage,  created 
by  another  person,  will  not  make  the  personal  estate  oT  the  cove- 
nantor liable  in  the  first  instance  to  the  payment  of  it ; 

139*     such  a  covenant  *being  only  considered  in  equity  as  an 
additional  security,  which  does  not  alter  the  nature  of  the 
debt. 

31.  Sir  E.  Bagot  married  the  daughter  and  heir  of  Sir  Thomas 
Wagstaff ;  and  for  raising  part  of  her  portion,  Sir  T.  Wagstaff 
mortgaged  part  of  his  estate  for  £3500,  and  died,  leaving  Lady 

(a)  Oneal  v.  Mead,  1  P.  Wms.  693.  (b)  1  Salk.  449. 


Title  XV.     Mortgage.     Ch.  IV.  s.  31—32.  643 

Bagot  his  daughter  and  heir.  The  mortgagee,  wanting  his  money, 
Sir  Edward  joined  in  an  assignment  of  the  mortgage,  and  cove- 
nanted that  he  or  his  wife  would  pay  the  money  ;  in  conse- 
quence of  which  a  question  arose,  whether,  by  reason  of  this 
covenant,  Sir  Edward's  personal  estate  should  be  liable  to  pay 
the  same. 

Lord  Cowper  declared,  that  this  covenant  by  Sir  Edward,  did 
not  oblige  his  personal  estate  to  go  in  ease  of  the  mortgaged 
premises ;  forasmuch  as  the  debt  being  originally  Sir  Thomas 
Wagstaff's,  and  continuing  to  be  so,  the  covenant,  upon  trans- 
ferring the  mortgage,  was  an  additional  security  for  the  satisfac- 
tion only  of  the  lender,  and  not  intended  to  alter  the  debt,  (a)  l 

32.  George  Evelyn  the  father,  in  pursuance  of  a  power,  mort- 
gaged an  estate  whereof  he  was  tenant  for  life,  with  remainder 
to  his  first  and  other  sons,  for  raising  X1500.  Upon  an  assign- 
ment of  this  mortgage,  George  Evelyn  the  son,  covenanted  to  pay 
the  mortgage  money.  At  his  death,  it  became  a  question  whether 
his  personal  estate  should  be  applied  in  payment  of  the  mortgage 
made  by  his  father,  as  he  had  covenanted  to  pay  it. 

Lord  King,  assisted  by  Lord  C.  J.  Raymond  and  the  Master  of 
the  Rolls,  was  of  opinion,  that  the  personal  estate  of  the  son 
should  not  be  applied  to  pay  off  the  mortgage  made  by  the 
father;  forasmuch  as  the  charge  was  made  by  George  Evelyn 
the  father,  in  pursuance  of  his  power.  That  this,  being  the 
original  debt  of  George  Evelyn  the  father,  though  his  personal 
estate,  if  any  such  were  to  be  found,  would  be  liable  thereto,  yet 
the  son's  personal  estate  ought  not  to  be  charged  with  the 
father's  debt;  and  notwithstanding  that  the  son  did  afterwards, 
on  the  assignment  of  the  mortgage,  covenant  to  pay  the  mort- 
gage money,  yet  since  the  land  was  the  original  debtor,  the 
covenant  from  the  son  should  be  considered  only  as  a  surety  for 
the  land,  (b) 

(«)  Bagot  v.  Ougliton,  1  P.  Wms.  34".     Donisthorpe  v.  Porter,  2  Eden,  1G2. 
(b)  Evelyn  v.  Evelyn,  2  P.  Wms.  659. 

1  So,  if  the  purchaser  or  devisee  of  the  mortgaged  premises  renders  himself  person- 
ally liable  for  the  debt,  the  land,  so  far  as  relates  to  the  marshalling  of  assets,  is  still  the 
primary  fund  for  payment  of  the  debt,  unless  a  contrary  intent  be  clearly  shown.  Duke 
of  Cumberland  u.  Codrington,  3  Johns.  Ch.  252.  But  the  purchaser,  by  express  direc- 
tions in  his  will,  or  by  dispositions  or  language  equivalent  to  express  directions,  may 
throw  the  burden  upon  his  personal  estate.     Ibid. 


644  Title  XV.     Mortgage.     Ch.  IV.  s.  33—35. 

33.  George  Delaval,  in  1722,  mortgaged  lands  to  W.  C.  to  se- 
cure the  repayment  of  £5000  with  interest  at  5  per  cent., 
140  *  and  *  by  his  will,  made  in  1723,  he  devised  the  lands  to 
his  nephew,  G.  Shafto,  in  tail  male,  remainder  to  the 
plaintiff  in  tail  male,  remainder  over ;  and  died  soon  after.  In 
1725,  G.  Shafto  suffered  a  recovery  to  the  use  of  himself  in  fee. 
The  mortgagee  calling  for  his  money,  W.  Gibbons  agreed  to  ad- 
vance the  .£5000  at  4  per  cent.,  on  an  assignment  of  the  mort- 
gage ;  which  was  accordingly  assigned  to  him,  with  a  proviso  for 
a  redemption,  on  payment  of  the  principal  and  interest  at  4  per 
cent.  And  G.  Shafto  covenanted  for  himself,  his  heirs,  executors, 
and  administrators,  to  pay  Gibbons  the  said  principal  and  inter- 
est. In  1779,  Shafto  agreed  to  raise  the  interest  to  5  per  cent. ; 
and  by  deed  covenanted  with  the  mortgagees,  that  the  estate 
should  remain  as  security  for  the  £5000,  with  interest  at  5  per 
cent. ;  and  that  he,  his  executors,  &c.  would  pay  such  interest  for 
the  same.  In  January,  1782,  G.  Shafto  died,  the  interest  on  the 
mortgage  being  then  in  arrear  for  about  ten  months.  The  bill 
was  ^brought,  among  other  things,  to  have  the  £5000  and  inter- 
est paid  out  of  the  personal  estate  of  G.  Shafto,  or  at  least  the 
arrear  of  interest  due  at  his  death,  and  the  additional  1  per  cent. 
charged  by  the  deed  of  1779.  But  Lord  Thurlow  was  clearly  of 
opinion,  that  the  personal  estate  ought  not  to  discharge  the  mort- 
gage, the  land  being  the  primary  fund.  He  also  thought  that 
the  interest  must  follow  the  nature  of  the  principal ;  and  that  the 
contract  for  the  additional  interest,  turning  upon  the  same  sub- 
ject, must  be  in  the  nature  of  a  real  charge,  (a) 

34.  Although  a  person  should  charge  his  real  and  personal 
estate  with  the  payment  of  his  debts  ;  yet  this  will  not  render  his 
personal  estate  liable  to  the  payment  of  a  mortgage  created  by 
another. 

35.  H.  Lawson  being  seised  in  fee  by  descent  of  an  estate  at 
Cramlington,  in  the  county  of  Northumberland,  and  of  other 
estates  both  freehold  and  copyhold,  devised  his  estate  at  Cram- 
lington, which  was  subject  to  a  mortgage  contracted  by  an  an- 
cestor, and  also  '  another  estate,  to  be  sold ;  charged  the  same, 
and  also  all  his  personal  estate,  with  the  payment  of  his  debts  ; 
and  devised  the  residue  of  his  real  estate  in  trust  for  his  brother, 
in  strict  settlement. 

(«)  Shafto  r.  Shafto,  2  P.  Wms.  664,  n. 


Title  XV.     Mortgage.     Ch.  IV.  s.  35—36.  645 

The  question  was,  whether  the  personal  estate  of  H.  Lawson, 
the  testator,  was  liable  to  the  payment  of  this  mortgage  ; 
and  *  it  was  decreed  by  Lord  Thurlow  that  the  personal     *  141 
estate  was  not  liable. 

On  an  appeal  to  the  House  of  Lords,  it  was  said — 1.  That 
by  the  established  rules  of  equity  the  personal  estate  of  the  tes- 
tator, whose  will  does  not  require  such  an  application  of  it,  is  not 
to  be  applied  in  favor  of  those  who  claim  his  real  estate,  for  the 
purpose  of  exonerating  it  from  debts  not  originally  contracted  by 
such  testator.  Courts  of  equity  distinguish  between  the  debts 
of  a  testator  and  the  debts  of  his  estate.  If  the  testator  had 
received  the  money  for  which  his  real  estate  was  pledged,  his 
personal  estate  having  received  the  benefit  of  the  charge  made 
upon  the  real  estate,  would  in  equity  be  liable  to  disincumber 
the  real  estate  ;  but  if  the  testator's  ancestor  created  the  charge, 
the  testator's  personal  estate  not  having  received  any  augmenta- 
tion, at  the  expense  of  the  real  estate,  could  not  in  such  a  case 
be  considered  as  a  debtor  to  it ;  and  this  held  equally  whether 
the  testator  was  seised  in  fee  simple,  or  for  a  less  estate,  in  the 
lands  charged.  This  was  the  true  principle  of  all  the  cases  de- 
termined on  the  subject.  The  circumstance  of  the  testator's 
having  been  personally  liable,  was  often  mentioned,  as  the  ground 
of  decisions  which  have  directed  the  application  of  personal 
estate  in  exoneration  of  real ;  but  there  were  many  cases  in 
which  courts  of  equity  had  refused  to  direct  personal  estate  to 
be  so  applied,  though  the  testator  had  entered  into  covenants,  or 
other  personal  engagements,  to  pay  the  debt  for  which  the  real 
estate  had  been  pledged  by  his  ancestors,  or  those  through  whom 

he  claimed. 
142  *        *  2dly.  There  was  no  express  mention  made  of  the  debt 

in  H.  Lawson's  will,  nor  any  clause  that  afforded  a  proof 
that  he  considered  it  as  his  debt.  The  testator  created  a  fund  for 
the  payment  of  his  debts,  legacies,  and  funeral  expenses  ;  but  to 
app]y  that  fund,  or  any  part  of  it,  in  discharge  of  the  mortgage 
debt,  would  be  to  dispose  of  it  for  the  payment  of  a  debt  which 
certainly  was  not  his  debt,  in  contemplation  of  law.  The  decree 
was  affirmed,  (a) 

36.    Where  a  person  only  purchases  an  equity  of  redemption, 

(a)  Lawson  v.  Hudson,  1  Bro.   C.  C.  58.     3  Bro.  Pari.  Ca.  424.     Tankcrvillc  v.  Fawcctt, 
1  Cox,  R.  237. 


646  Title  XV.     Mortgage.     Ch.  IV.  5.  36—40. 


5 


his  personal  estate  will  not  be  applied  towards  payment  of 
the  mortgage  money;  because  it  was  not  benefited  by  the 
loan. 

37.  Thus,  it  is  laid  down  by  counsel  in  the  year  1681,  as  a 
doctrine  fully  established  in  Chancery,  that  where  a  person  pur- 
chases an  equity  of  redemption,  in  that  case,  although  he  pur- 
chases the  land,  subject  to  the  debt  due  on  the  mortgage,  and 
must  hold  the  lands  subject  to  such  debt,  yet  that  debt  could 
never  charge  his  person,  nor  did  it  in  any  sort  become  his  own 
proper  debt,  (a) 

38.  John  Aynesley  purchased  an  estate  from  William  Aynesley, 
which  was  subject  to  a  mortgage  for  X2000.  Not  having  paid  it 
off,  he  devised  the  lands,  together  with  other  real  estates,  but 
subject  nevertheless  to  the  payment  of  all  his  debts,  to  his  son, 
in  strict  settlement.  The  question  was,  whether  the  personal 
estate  of  John  Aynesley  should  be  applied  in  discharge  of  this 
mortgage. 

Lord  Thurlow  said,  this  case  was  exactly  the  same  with  that 
of  Rochfort  v.  Belvedere,  5  Brown's  Pari.  Ca.  299,  where  the 
House  of  Lords  decreed  that  the  personal  estate  was  liable  to  the 
payment  of  the  mortgage ;  but,  notwithstanding,  he  said  he  was 
of  a  different  opinion.  The  personal  estate  never  was  liable,  nor 
was  the  party  ever  liable,  to  an  action  for  recovery  of  the  money ; 
and  therefore  it  ought  not  to  be  applied  in  payment  of  the  mort- 
gage, (b) 

39.  A  covenant  from  the  purchaser  of  an  equity  of  redemption 
for  payment  of  the  mortgage  money,  will  not  make  his  personal 

estate  liable  in  the  first  instance  to  the  payment  of  it. 
143  *  *  40.  Mr.  Leigh,  the  testator,  had  purchased  several  es- 
tates subject  to  mortgages ;  with  regard  to  one  of  which, 
he  entered  into  a  covenant  for  payment  of  the  mortgage  money, 
for  the  purpose  of  indemnifying  a  trustee  ;  and  as  to  another 
which  weS'  a  part  only  of  an  estate,  subject  to  a  mortgage,  upon 
splitting  the  incumbrance,  both  parties  covenanted  to  pay  their 
respective  shares,  and  to  indemnify  each  other. 

Lord  Hardwicke  thought  these  covenants  would  not  have  the 
effect  of  making  the  mortgages  personal  debts  of  the  testator, 

(a)  Pockley  v.  Pockley,  1  Vern.  37. 

(b)  Tweddell  v.  Tweddell,  2  Bro.  C.  C.  101.     Butler  v.  Butler,  5  Ves.  536.    Aucaster  v. 
Mayer,  ante,  §  24. 


Title  XV.     Mortgage.     Cli.  IV.  s.  40—42.  647 

they  having  been  entered  into  for  particular  purposes ;  and  de- 
clared his  opinion  accordingly  in  the  decree,  (a)1 

41.  But  where  it  appears  to  have  been  the  intention  of  the 
purchaser  of  an  equity  of  redemption  to  make  the  debt  his  own, 
there  his  personal  estate  will  be  applied  in  payment  of  the  money 
due  upon  it.2 

42.  A  person  agreed  to  purchase  an  estate  which  was  in  mort- 
gage for  <£90,  of  which  he  covenanted  to  pay  <£86  to  the  mort- 
gagee, and  £4  to  the  owner  of  the  estate.  The  purchaser  died  • 
and  the  question  was,  whether  the  heir  at  law  was  entitled 
to  have  the  money  paid  out  of  the  personal  estate  of  the  pur- 
chaser. 

Lord  Hardwicke  was  of  opinion  that  he  was.  1st.  It  was  an 
express  contract  to  pay,  and  the  representative  of  the  mortgagor 
might  maintain  an  action  for  the  money ;  and  so  might  the  mort- 
gagee oblige  the  mortgagor  to  let  him  make  use  of  his  name  to 

(«)  Forrester  v.  Leigh,  cited  2  P.  Wins.  664. 


1  But  if  an  estate  descends,  subject  to  a  mortgage,  and  the  heir  creates  a  new  mort- 
gage for  security  both  of  the  old  debt  and  of  another  contracted  by  himself,  fixin"-  a 
new  day  of  payment,  he  makes  himself  personally  liable  for  both.  Lushington  v. 
Sewall,  1  Sim.  435. 

2  Where  the  mortgagor  has  conveyed  the  entire  equity  of  redemption,  absolutely  and 
without  warranty,  the  mortgaged  premises  constitute  the  primary  fund  for  the  payment 
of  the  debt ;  and  the  mortgagor  is  not  a  necessary  party  to  a  bill  of  foreclosure.  Bio-c- 
low v.  Bush,  6  Paige,  343;  Heyer  v.  Pruyn,  7  Paige,  465.  But  where  he  has  sold  only 
a  part  of  the  equity  of  redemption,  for  good  or  valuable  consideration,  the  entire  resi- 
due is  applicable  in  the  first  instance  to  the  discharge  of  the  mortgage,  in  favor  of  the 
bona  fide  purchaser.  Hartly  v.  0 'Flaherty,  Lloyd  &  Goold,  Cas.  Temp.  Plunket,  216  ■ 
[Howard  Ins.  Co.  v.  Halsey,  4  Sandf.  Sup.  Ct.  565.  It  is  a  general  principle  that 
where  the  owner  of  land  mortgaged  for  a  debt,  afterwards  sells  the  equity  of  redemption 
subject  to  the  lien  of  the  mortgage,  and  the  purchaser  assumes  the  payment  of  the 
mortgage  as  a  portion  of  the  purchase-money,  the  latter  becomes  personally  liable  for 
the  payment  of  the  debt  of  the  former  in  the  first  instance,  and  if  the  mortgagor  is 
compelled  to  pay  it  he  can  recover  it  from  the  purchaser  of  the  equity  of  redemption. 
Flagg  v.  Thurber,  14  Barb.  Sup.  Ct.  196  ;  Andrews  v.  Wolcott,  16  lb.  21  ;  Russell  v. 
Pistor,  3  Selden,  (N.  Y.)  171  ;  see  Mellen  v.  Whipple,  1  Gray,  317. 

Where  the  estate  of  the  mortgagor  and  the  mortgagee  coexist  in  the  same  person 
a  court  of  law  will,  when  necessary  for  just  purposes  and  to  effectuate  the  proper  in- 
tention of  the  parties,  treat  them  as  distinct  interests.  Hutchins  v.  Carleton,  19  N.  II. 
487.  But  where  such  a  person,  i.  e.,  one  in  whom  the  mortgage  and  the  equity  have 
united,  takes  and  retains  other  security  for  the  debt,  qucere  how  far  he  may  be  required 
by  the  debtor  to  apply  the  value  of  the  land  towards  extinguishing  the  debt,  before 
resorting  to  the  other  fund  of  which  the  general  property  remains  in  such  debtor. 
Smith  v.  Packard,  lb.  575;  Jackson  v.  Tift,  15  Geo.  557  ;  Vannest  v.  Latson,  19  Barb. 
Sup.  Ct.  604;  Walker  v.  Baxter,  26  Vt.  (3  Dean,)  710.] 


648  Title  XV.     Mortgage.     Ch.  IV.  5.  42—44. 

recover  the  money.     This  was  as  strong  a  case  as  could  well 
come  before  the  Court. 

2dly.  It  being  agreed  to  be  part-  of  the  purchase-money,  the 
heir  would,  if  there  was  nothing  more  in  the  case,  be  entitled  to 
have  the  money  paid  out  of  the  personal  estate,  as  where  one 
articles  to  purchase  an  estate,  and  dies  before  the  purchase  is 
completed,  (a) 

43.  Where  a  wife  joins  Iter  husband  in  a  mortgage  of  her  own 
estate,  and  the  money  is  applied  for  the  husband's  benefit,  the 
personal  estate  of  the  husband  will  be  first  applied  in  payment 
of  the  mortgage.1 

44.  Lord  Huntingdon  and  his  first  wife  joined  in  a  mortgage 
for  a  term  of  years  of  her  estate  for  £4500,  by  the  execution 
of  a  power  of  appointment,  to  pay  for  a  place  of  captain  of  the 

band  of  pensioners,  for  Lord  Huntingdon,  who  promised 
144*  *to  repay  the  money  out  of  the  profits  of  the  place,  or 
otherwise.  The  mortgagee,  together  with  the  earl  and 
countess,  assigned  the  mortgage,  subject  to  a  proviso,  that  if  the 
earl  or  countess,  or  either  of  them,  should  pay  the  money  and 
interest,  the  term  should  cease.  The  earl  afterwards  paid  off  the 
mortgage,  and  procured  the  term  to  be  assigned  to  a  trustee  for 
himself.  The  countess  died;  and  the  earl  having  married  again, 
made  his  will,  and  devised  the  mortgage,  with  all  other  his 
personal  estate,  to  his  executors,  in  trust  for  his  children  by  his 
second  wife.  The  son  of  the  first  wife,  who  became  Lord  Hun- 
tingdon upon  the  death  of  his  father,  filed  his  bill  to  have  the 
term  assigned  to  attend  the  inheritance,  which  had  descended  to 
him  from  his  mother. 

Lord  Keeper  Wright  declared  he  could  not  decree  for  the 
plaintiff,  but  upon  the  usual  terms  of  redemption,  on  payment  of 
principal,  interest,  and  costs,  and  discounting  profits. 

The  plaintiff  appealed  to  the  House  of  Lords,  insisting  that 

(a)  Parsons  v.  Freeman,  Amb.  115.  Waring  v.  Ward,  7  Ves.  332.  Earl  of  Oxford  v.  Kod- 
ney,_14  Ves.  417. 

1  Where  she  joins  with  the  husband  in  a  mortgage  for  his  debt,  she  is  entitled,  after 
the  husband's  death,  to  the  rents  and  profits  of  her  dower  or  other  interest  in  the 
premises,  until  foreclosure.  And  if  the  debt  is  payable  by  instalments,  and  the  amount 
which  has  become  due  can  be  raised  by  a  sale  of  only  a  part  of  the  premises,  the  in- 
come of  her  share  of  the  residue  will  not  be  taken  to  satisfy  the  portion  of  the  debt 
which  is  not  yet  payable.    Bank  of  Ogdensburg  v.  Arnold,  5  Paige,  39. 


Title  XV.     Mortgage.     Ch.  IV.  s.  11     17.  649 

he  was  in  effect  decreed  to  pay  the  mortgage  debt,  which  was 
wholly  a  debt  of  the  late  earl,  created  to  serve  his  particular 
occasions,  and  never  was  in  any  shape  the  debt  of  the  late  count- 
ess, nor  did  any  part  of  the  money  come  to  her  use. 

*It  was  ordered  and  adjudged,  that  so  much  of  the     *145 
decree  as  was  complained  of  should  be  reversed ;   and 
that  the  premises  in  question  should  be  discharged  from  the  de- 
mands of  the  respondents,  and  the  term  assigned,  as  the  appel- 
lant should  direct,  (a) 

45.  Mr.  Alexander  and  his  wife,  who  was  the  daughter  and 
heir  of  one  Dayly,  made  a  mortgage  of  the  wife's  estate.  The 
husband  covenanted  to  pay  the  money  ;  but  the  equity  of 

*  redemption  was  reserved  to  them  and  their  heirs.  Mr.  *  146 
Alexander,  the  husband,  died ;  and  made  the  defendant 
his  executor,  the  wife  surviving.  After  a  decree  to  account,  the 
question  was  upon  exceptions  to  the  Master's  report,  whether  the 
mortgage  money  should  stand  charged  upon  the  land,  or  the  land 
be  exonerated  out  of  the  husband's  personal  estate.  Per  Our. — 
The  husband  having  had  the  money,  is  in  equity  the  debtor,  and 
the  land  is  to  be  considered  but  as  an  additional  security ;  and 
so  decreed  it,  according  to  the  judgment  in  the  House  of  Peers, 
in  the  case  of  Lord  and  Lady  Huntingdon,  (b) 

46.  The  wife  joined  with  her  husband  in  a  fine  to  raise  £400 
out  of  her  own  estate,  for  the  use  of  her  husband,  to  equip  him 
as  an  officer  in  the  army.  The  question  was,  whether  the  hus- 
band's personal  estate  should  be  applied  to  exonerate  the  mort- 
gage. Per  Cur. —  The  wife  subjected  her  estate  to  supply  the 
wants  of  her  husband.  It  must  be  taken  to  be  a  debt  due  from 
the  husband  ;  and  to  be  paid  out  of  his  personal  estate,  if  he  be 
able ;  but  all  other  debts  should  be  first  paid,  (c) 

47.  Lord  Hardwicke  has  said — "Suppose  a  husband  has  a 
mortgage  upon  his  estate,  and  a  wife  joins  with  him  in  charging 
her  own ;  if  she  survives  him,  though  her  estate  is  liable  to  the 
mortgagee,  yet  in  this  court  her  estate  shall  be  looked  upon  only 
as  a  pledge;  and  she  is  entitled  to  stand  in  the  place  of  the  mort- 
gagee, and  to  be  satisfied  out  of  her  husband's  estate."  (d) 

(«)  Huntingdon  v.  Huntingdon,  1  Ab.  Eq.  62.     2  Bro.  Pari.  Ca.  1. 
(0)  Pocock  i\  Lee,  2  Vera.  604. 

(c)  Tate  v.  Austin,  2  Vern.  689.     1  P.  Wms.  264. 

(d)  2  Atk.  384.    3  Bro.  C.  C.  545.    1  Vez.  252. 

vol.  i.  55 


650  Title  XV.     Mortgage.     Ch.  IV.  s.  48—50 


5 


48.  [But  where  the  charge  on  the  wife's  estate  is  not  the  debt 
of  the  husband,  her  claim  to  exoneration  fails. 

Thus,  where  the  estate  descended  to  the  wife  subject  to  a 
mortgage,  and  the  mortgage  was  assigned,  the  husband  cove- 
nanting in  the  assignment  to  pay  the  mortgage  money ;  it  was 
decided  that,  the  debt  not  being  the  husband's,  his  personal  assets 
should  not  exonerate  the  wife's  estate ;  the  husband's  covenant 
was  only  considered  an  additional  security,  (a)] 

49.  So  also,  where  money  is  borrowed  on  the  wife's  estate, 
partly  to  pay  her  debts,  and  partly  for  the  husband's  use,  the  hus- 
band will  not  be  required  to  indemnify  his  wife's  estate  against 
any  part  of  it.1 

50.  On  a  bill  to  have  a  sum  of  £1100  paid  by  the  defendant, 
as  having  been  borrowed  by  him  on  the  security  of  his  late  wife's 
estate,  Lord  Hardwicke  said,  the  general  rule  was,  that  where  the 

husband  borrowed  a  sum  of  money  for  his  own  use,  and 
147  *  the  *wife  joined  in  a  mortgage  of  her  jointure  for  repay- 
ment of  it,  her  estate  should  be  a  creditor  on  the  husband 
for  that  sum.  So  it  was  where  there  was  no  settlement,  and  the 
wife  mortgaged  her  estate  of  inheritance  to  raise  money  for  the 
husband.  But  there  was  no  instance  where,  at  the  time  of  such 
mortgage  or  security  made,  if  at  the  same  time  a  settlement 
was  made  either  before  or  after  marriage,  that  the  husband  was 
considered  as  answerable  to  the  wife's  estate,  for  the  money 
borrowed  ;  that  was  an  exception  out  of  the  general  rule  ;  other- 
wise it  would  be  very  inconvenient  to  men  that  were  going  to 
be  married,  and,  nine  times  in  ten,  contrary  to  the  intention  of 
the  parties.  Besides,  in  this  case,  the  greatest  part  of  the 
money  borrowed  was  to  pay  off  a  debt  due  from  the  wife  dum 
sola  ;  and  it  was  against  equity  to  say  that  the  husband  ought 
to  indemnify  the  wife's  estate  against  that  debt.     The  husband, 

(a)  Bagot  v.  Oughton,  1  P.  Wms.  347. 

1  A  feme  sole  made  a  mortgage,  and  afterwards  married.  The  mortgage  was  then 
assigned,  the  husband  joining  in  the  transfer,  and  covenanting  to  pay  the  money ; 
which,  during  the  coverture,  he  paid  in  part.  By  his  will  he  made  a  disposition  of  the 
mortgaged  premises,  and  died,  living  the  wife ;  who  afterwards  filed  a  bill  to  redeem 
the  mortgage,  claiming  to  be  entitled  by  survivorship.  The  redemption  was  decreed 
upon  the  terms  that  the  husband's  estate  should  stand  in  the  place  of  the  mortgagee, 
for  the  sums  paid  by  him  out  of  his  own  property,  in  reduction  of  the  mortgage  debt. 
Pitt  v.  Pitt,  Turn.  &  Russ.  180. 


Title  XV.     Mortgage.     Ch.  IV.  s.  50—52.  651 

it  was  said,  was  liable  to  the  wife's  debts,  contracted  before 
marriage  ;  and  so  he  was  :  but  if  he  was  not  sued  in  her  lifetime, 
he  was  not  liable  even  at  law,  unless  she  had  a  separate  allow- 
ance, and  left  any  thing  behind  her,  which  he  possessed  as  her 
executor. 

It  was  said,  part  of  this  money  was  paid  to  the  husband  and 
wife,  not  in  order  to  discharge  the  wife's  debts,  but  to  the  hus- 
band's use  ;  that  payment  to  the  husband  and  wife  was  payment 
to  the  husband.  The  Court  would  not,  however,  set  up  two 
presumptions,  but  adhere  to  one  only.  As  the  greater  part  was 
manifestly  not  intended  to  be  accounted  for  by  the  husband  to 
the  wife's  estate,  so  he  should  take  it  that  the  rest  was  not.  It 
was  said  the  husband  gave  bond  for  payment  of  the  money, 
and  performance  of  covenants ;  that  the  creditors  might  have 
sued  him  on  this  bond,  and  then  he  must  have  come  as  plaintiff 
into  the  Court  of  Chancery,  to  be  repaid  out  of  the  wife's  estate, 
which  the  Court  would  not  have  done  ;  and  there  was  no  more 
reason  for  it  then  ;  and  he  was  of  opinion  the  Court  would  have 
relieved  him.  Therefore  decreed  the  defendant  only  to  keep 
down  the  interest  for  life,  &c.  (a) 

51.  If,  however,  it  appear  not  to  have  been  the  intention  of  the 
wife  to  stand  as  a  creditor  for  the  mortgage  money,  the  husband's 
personal  estate  will  not  be  liable. 

52.  A  bill  was  filed  by  the  widow  of  William  Clinton,  to  have 
her  estate  exonerated,  by  the  estate  of  her  husband,  from  a  mort- 
gage made  by  the  husband  and  plaintiff,  for  which  he 
received  *  the   money.     The  facts  were,  that  in  1746,  the     *  148 
plaintiff  intermarried  with  William  Clinton,  who  was  then 

in  indifferent  circumstances,  and  received  from  her  father  a 
proper  fortune.  In  1762,  she  became  entitled  to  some  real 
estates ;  and,  in  order  to  raise  money  for  her  husband,  she  joined 
with  him  in  a  mortgage  of  those  estates.  After  the  death  of 
Clinton,  the  plaintiff  filed  her  bill  to  have  her  estates  exonerated, 
to  which  the  devisee  of  the  personal  estate  and  executor  of  her 
husband  put  in  an  answer,  in  which  they  contested  the  plaintiff's 
right,  on  the  ground  that  it  was  a  voluntary  gift,  by  the  plaintiff 
to  her  husband,  in  order  to  enable  him  to  complete  a  purchase 

(a)  Lewis  v.  Nangle,  Amb.  150,  S.  C.  2  P.  Wms.  664,  in  nolis.  See  Kinnoul  v.  Money, 
1  Ves.  186,  and  1  Rop.  Husb.  and  Wife,  c.  4,  §  2. 


652  Title  XV.     Mortgage.     Ch.  IV.  s.  52—54. 

which  had  been  made  at  her  request ;  and  that  upon  settling 
some  accounts,  the  matter  respecting  the  mortgage  had  been 
fully  entered  into,  on  which  occasion  the  plaintiff  admitted  she 
had  been  advised  to  claim  the  mortgage  money,  but  had  relin- 
quished that  idea,  and  did  not  desire  it,  and  promised  to  dis- 
charge the  same,  and  accept  the  provision  made  for  her  by  her 
husband's  will. 

Lord  Thurlow  admitted  parol  evidence  of  the  wife's  having 
relinquished  this  demand  against  her  husband ;  and  dismissed 
her  bill,  (a) 

53.  Where  lands  are  in  settlement,  and  the  husband  and  wife 
join  in  a  mortgage  of  them,  if  the  deed  creating  the  security  is 
no  more,  in  effect,  than  a  simple  charge  on  the  lands,  and  does 
not  alter  the  limitations  further  than  is  necessary  to  create  the 
charge,  the  right  of  redemption,  although  it  be  reserved  by  the 
deed  to  the  husband  and  wife,  or  either  of  them,  their  or  either 
of  their  heirs,  belongs  only  to  those  ivho  are  entitled  under  the 
settlement,  and  not  to  the  heirs  of  the  husband,  if  he  survives  the 
wife.  But  where  the  wife's  lands,  on  her  marriage,  were  limited 
to  the  use  of  the  husband  and  wife  successively  for  life,  remain- 
der to  their  issue,  with  the  reversion  to  the  wife  and  her  heirs, 
and  the  deed  contained  a  power  of  revocation  and  new  appoint- 
ment, and  the  husband  and  wife  made  a  mortgage  for  a  term  of 
years,  and  afterwards  executed  a  deed  of  further  charge,  and 
levied  a  fine,  and  thereby  limited  the  lands,  subject  to  the  term 
to  themselves  for  life,  with  remainder  to  the  heirs  of  their  bodies, 
and  for  default  of  such  issue  to  the  right  heirs  of  the  survivor,  it 
was  held,  that,  as  there  was,  on  the  face  of  the  deed,  a  clear 
manifestation  of  an  intention  to  effect  a  change  of  the  beneficial 

interest,  the  husband  and  his  heirs   (the  wife  being  dead 
149  *     *  and  there  being  no  issue)  was  entitled  to  the  equity  of 
redemption,  (b) 

54.  "Where  an  estate  in  mortgage  was  vested  in  a  person  for 
life,  with  remainder  to  another  in  fee,  the  rule  formerly  was,  that 
the  tenant  for  life  should  pay  one  third,  and  the  remainder-man 
the  other  two  thirds,  of  the  money  due  on  the  mortgage.  [But 
the  rule  respecting  contribution  by  the  tenant  for  life,  of  one  third 

(a)  Clinton  v.  Hooper,  3  Bro.  C.  C.  201. 

(6)  Jackson  v.  Lines,  1  Bligh,  104,  in  which  all  the  authorities  on  this  point  are  referred  to. 
Ruscombe  v.  Hare,  6  Dow,  1.     See  Hop.  Husb.  &  Wife,  vol.  1,  c.  4,  §  3. 


Title  XV.      Mortgage.     Ch.   IV.   s.  54.  653 

of  the  principal  money,  is  ^iow  exploded.1  He  is  bound,  how- 
ever, to  keep  down  the  interest,  and  beyond  that,  to  contribute, 
in  some  cases,  in  proportion  to  the  benefit  he  derives  from  the 
liquidation  of  the  mortgage.]  And  where  the  mortgage  is  not 
redeemed  during  the  life  of  the  tenant  for  life,  there  the  whole 
of  the  money  must  be  paid  by  the  person  who  becomes  possessed 
of  the  remainder,  who  cannot  compel  the  representatives  of  the 
tenant  for  life  to  contribute  any  thing  towards  the  payment  of 
the  mortgage  money,  (a) 

(a)  Ballet  v.  Sprainger,  Free,  in  Cha.  62.  Clyatt  v.  Battison,  1  Ab.  Eq.  117.  5  Ves.  107. 
White  v.  White,  4  Ves.  33.  9  Ves.  554.  Montfort  v.  Lord  Cadogan,  17  Ves.  485.  19  Ves. 
635.  2  Mer.  3.  Allan  v.  Backhouse,  2  Ves.  &  Bea.  70;  and  see  Roper  on  Leg.  vol.  1,  c.  4. 
§  6,  3d  ed. 


1  On  the  subject  stated  in  the  text,  Mr.  Coventry  has  the  following  note  :— "  This 
rule,  as  to  the  tenant  for  life  paying  a  gross  sum,  is  now  exploded  as  unreasonable : 
Penrhyn  v.  Hughes,  5  Ves.  107  ;  White  v.  White,  4  Ves.  33  ;  and  the  following  more 
equitable  one  adopted  in  its  stead,  viz.,  that  the  tenant  for  life  shall  contribute  beyond  the  in- 
terest in  proportion  to  the  benefit  he  derives  from  the  liquidation  of  the  mortgage  debt,  and  the 
consequent  cessation  of  annual  payments  of  interest  during  his  life,  (which,  of  course,  will 
depend  much  on  his  age,  and  the  computation  of  the  value  of  his  life.)  And  a  refer- 
ence will  be  directed  to  the  Master  to  inquire  what  proportion  of  the  capital  he  ought  to  pay. 
Allan  v.  Backhouse,  2  Ves.  &  Bea.  70.  See  also  Nightingale  v.  Lawson,  1  Bro.  C.  C. 
440;  Shrewsbury  v.  Shrewsbury,  1  Ves.  jun.,  233,  234;  Jennings  v.  Looks,  2  P.  Wms. 
278  ;  Jones  v.  Selby,  Pre.  Ch.  289;  Lloyd  v.  Johnes,  9  Ves.  37;  Montford  v.  Cadogan. 
17  Ves.  485.  This  subject  was  much  discussed  at  the  Rolls,  in  the  case  of  White  v. 
White,  4  Ves.  24,  and  5  Ves.  554,  and  afterwards  before  the  Chancellor,  on  appeal, 
when  the  decision  of  the  Master  of  the  Rolls  was  as  to  the  main  points  affirmed.  9 
Ves.  554.  Lord  Alvanley,  M.  R.,  is  reported  to  have  said,  that  the  tenant  for  life  ought 
to  pay  nothing  but  the  interest.  The  present  Lord  Chancellor,  however,  when  that 
case  came  on  upon  appeal,  disapproved  of  that  doctrine,  on  the  ground  of  the  possible 
inequality;  and  stated  the  rule  as  an  obiter  dictum  to  be,  that  in  general  cases,  where 
the  tenant  for  life  is  bound  to  pay  any  thing  beyond  the  interest,  he  is  bound  to  pay  in 
proportion  to  the  benefit  he  de  facto  takes  under  the  transaction  ;  and  that  the  remain- 
der-man ought  also  to  pay  with  reference  to  his  proportion  of  the  benefit.  But  his 
Lordship  would  not  finally  decide  the  question  then,  it  being  in  that  case  unnecessary 
to  give  a  definite  opinion  on  the  subject.  The  rule,  however,  as  above  stated,  was  sub- 
sequently acknowledged  and  acted  on,  in  the  case  of  Allan  v.  Backhouse,  ubi  supra. 
and  such  must  now  be  taken  to  be  the  standing  doctrine  of  the  Court.-'  Sec  1  Pow. 
Mortg.  312,313,  Rand's  ed. ;  3  Pow.  Mortg.  921,  note  (n).  Sec  also  1  Story,  Eq. 
Jour."*  487,488,  488, a;  Swaine  v.  Pcrine,  5  Johns.  Ch.  482;  Clyatt  v.  Batteson,  1 
Vern.  404;  Thynn  v.  Duvall,  2  Vern.  117  ;  4  Kent,  Comm.74,  75.  The  same  gen- 
eral principle  was  administered  in  Foster  v.  Milliard,  I  Story,  It.  77  ;  where  a  sale  of 
an  estate  was  made  by  the  tenant  for  life  and  the  person  in  remainder ;  and  it  was  held, 
in  the  absence  of  countervailing  circumstances,  that  the  purchase-money  should  be 
divided  according  to  their  respective  interests,  calculated  according  to  the  value  of  the 
estate  of  the  tenant  for  life,  by  the  common  tables. 

55* 


654  Title  XV.     Mortgage.     Oh.  IV.  s.  55—57. 

55.  If  a  tenant  for  life  of  an  equity  of  redemption  pays  off  the 
mortgage  money,  and  procures  the  term  to  be  assigned  to  a 
trustee  for  himself,  makes  improvements,  and  dies,  and  after- 
wards the  remainder-man  comes  to  redeem,  [the  rule  formerly 
was  that]  the  representatives  of  the  tenant  for  life  should  have  an 
allowance  of  two  thirds  of  the  lasting  improvements,  but  noth- 
ing for  the  other  third,  because  he  received  the  benefit  thereof 
during  his  life.  [But  modern  decisions  seem  to  have  altered  this 
rule,  and  to  have  allowed  the  tenant  for  life  and  the  mortgagee 
making  lasting  improvements,  the  whole  of  the  principal  money 
expended,  and  interest  from  the  period  of  the  advances  ;  but  of 
course  the  representatives  of  the  tenant  for  life  cannot  claim  in- 
terest of  the  money  paid  in  discharge  of  the  mortgage  debt,  for 
that  the  tenant  for  life  was  bound  to  keep  down.]  (a) 

56.  Wliere  a  person  who  is  tenant  for  life  of  an  estate  that  is 
mortgaged  pays  off  the  mortgage  money,  his  personal  represen- 
tatives will  be  entitled  to  call  on  the  remainder-man  for  all  the 
principal  money  so  paid  ;  but  where  a  tenant  in  tail  pays  off  a 
mortgage,  the  presumption  is,  that  this  was  done  in  exoneration 
of  the  estate,  unless  the  contrary  appears,  (b) 

57.  A,  tenant  in  tail  of  an  equity  of  redemption,  under  his 
father's  will,  paid  off  a  mortgage  secured  on  the  estate,  by  a 
term  for  years,  but  did  not  procure  an  assignment  of  the  term, 

and  afterwards  devised  the  lands.  The  remainder-man 
150  *  claimed  *  the  lands,  the  estate  tail  not  being  barred,  dis- 
charged of  the  incumbrance. 
Lord  Hardwicke  held,  that  there  being  a  terra  for  years  in  the 
mortgagee,  which  stood  out  in  point  of  law,  as  it  did  before,  no 
assignment  in  law  having  been  made  thereof,  none  of  the  parties 
before  the  Court  had  the  legal  estate,  for  a  conveyance  of  which 
the  plaintiff  came;  therefore,  that  conveyance  must  be  upon 
equitable  grounds.  So  far  as  it  appeared,  tenant  in  tail  paid  it 
off  with  his  own  money.  He  might  have  taken  an  assignment 
of  the  term,  either  in  trust  to  attend  the  inheritance,  which 
would  have  ended  the  question,  or  in  trust  for  himself,  his  execu- 
tors, or  administrators ;  which  would,  notwithstanding  the  re- 
mainder over,  have  kept  this  incumbrance  on  foot  for  the  benefit 

(a)  Newling  r.  Abbot,  1  Yin.  Ab.  1S5.     Decree  in  Webb  v.  Eorke,  2  Sch.  &  jLef.  661,  674. 
Godfrey  v.  Watson,  3  Atk.  517.    Turner  v.  Crane,  1  Ver.  184,  n.  1.     Walley  v.  W  alley,  lb.  487. 

(b)  Tit.  3,  c.  1,  §  27,  28.     Tit.  2,  c.  1,  §  40.     Tit.  12,  c.  3,  §  12,  et  seq. 


Title  XV.     Mortgage.     Ch.  IV.  s.  57—59.  655 

of  his  personal  estate,  and  those  entitled  thereto ;  or  he  might 
have  called  for  an  assignment  of  it  during  his  life,  if  he  had  dis- 
covered this  limitation  in  remainder,  that  it  might  have  been 
made  for  the  benefit  of  his  executors,  not  of  the  remainder.  But 
his  not  doing  any  of  these  clearly  proved,  that  he  conceived  he 
had  the  absolute  ownership  of  the  estate ;  and  the  Court  could 
not  decree  to  persons  claiming  this,  in  contradiction  to  his  appre- 
hension and  intent,  a  conveyance  of  the  inheritance,  and  like- 
wise of  the  term,  without  making  a  satisfaction  to  the  personal 
estate  of  the  tenant  in  +ail ;  as  that  would  be  contrary  to  the 
maxim,  that  he  who  would  have  equity  must  do  equity.  The 
plaintiffs  were  decreed  to  have  the  estate,  subject  to  the  money 
paid  by  the  tenant  in  tail,  in  discharge  of  the  mortgage,  (a) 

58.  In  all  mortgages,  it  is  expressly  stipulated  that  the  mort- 
gagor shall  pay  interest  for  the  money  borrowed  ;  but  in  conse- 
quence of  the  Stat.  12  Ann.  st.  2,  ch.  16,  s.  1,  all  assurances  for 
the  payment  of  any  principal  money  to  be  lent,  whereupon  there 
shall  be  reserved  above  5  per  cent.,  shall  be  utterly  void.  And 
Lord  Hardwicke  has  said,  that  if  a  mortgage  be  drawn  only  for 
5  per  cent,  and  the  mortgagee  takes  six,  it  would  be  void  upon 
the  word  take  in  the  statute. (b) 1  f 

59.  Interest  on  mortgages  $  is  due  de  die  in  diem ;  and,    *  151 

(a)  Kirkham  v.  Smith,  1  Ves.  258.  (&)  Tit.  32,  c.  27.     3  Atk.  154. 


1  This  dictum  of  Lord  Hardwicke,  in  its  obvious  acceptation,  is  not  law.  The  secu- 
rity itself  is  not  affected  by  usury,  unless  the  usury  is  thereby  reserved  ;  i.  e.  unless  it  is 
given  upon  an  usurious  agreement,  made  at  the  same  time.  If  the  security  is  for  the 
actual  debt  only,  with  lawful  interest,  and  afterwards,  upon  a  new  motive,  usury  is 
received ;  the  taker  is  liable  to  the  penalty  of  the  statute,  but  the  security  is  good.  See 
Rex  v.  Allen,  T.  Raym.  197  ;  Abrahams  v.  Bunn,  4  Burr.  2253  ;  Gray  v.  Fowler,  1  H. 
Bl.  462;  Floyer  v.  Edwards,  Cowp.  114;  Ferrall  v.  Shaen,  1  Saund.  295,  n.  (1,)  by 
Williams.  Mr.  Ord  has  attempted  to  vindicate  Lord  Hardwicke's  remark,  by  suppos- 
ing him  to  mean  that  the  taking  of  usury  was  conclusive  evidence  of  an  original  cor- 
rupt agreement  to  take  it.  Ord  on  Usury,  p.  104.  See  Chitty  on  Contracts,  p.  540— 
549,  with  Perkins's  notes. 

[t  By  the  statute  14  Geo.  3,  ch.  79,  it  is  enacted,  that  all  mortgages  which  shall  be 
made  and  executed-  in  Great  Britain,  of  or  concerning  any  lands,  tenements,  heredita- 
ments, &c,  being  in  the  kingdom  of  Ireland,  or  in  any  of  the  British  colonics  or  plan- 
tations  in  the  West  Indies,  to  any  of  his  majesty's  subjects,  and  all  bonds,  covenants, 
and  securities,  for  payment  thereof,  and  the  interest  thereof,  and  all  transfers  and 
assignments  thereof,  shall  be  as  good  and  effectual  as  if  the  same  were  made  and  exe- 
cuted in  the  kingdom,  island,  plantation,  or  place  where  the  lands,  &c,  severally  lie, 
at  the  rate  of  interest  allowed  in  those  places.     Tit.  32,  ch.  27.] 

[t  By  Statute  3  &  4  Will.  4,  ch.  26,  s.  42,  it  is  enacted,  that  after  the  said  31st  day  of 


656  Title  XV.     Mortgage.     Ch.  IV.  s.  59—61. 

therefore,  if  a  person  be  entitled  to  the  interest  of  a  mortgage  for 
his  life,  with  remainder  to  another,  his  executor  will  be  entitled 
to  interest  up  to  the  day  of  his  death,  (a) 

60.  It  has  been  usual,  where  the  interest  of  money  lent  on 
mortgage  is  reserved  at  the  rate  of  five  per  cent,  to  insert  a 
proviso,  that  if  it  is  punctually  paid,  the  mortgagee  will  accept 
of  four,  or  four  and  a  half  per  cent,  which  is  allowed  to  be  good  ; 
but  where  the  interest  reserved  was  five  per  cent,  with  a  proviso 
that  if  it  was  not  paid  within  two  months  after  it  became  due,  it 
should  be  raised  to  five  and  a  half  per  cent,  and  the  interest  was 
not  paid  within  the  time,  the  Court  of  Chancery  would  not  allow 
the  mortgagee  to  recover  the  additional  half  per  cent.,  because 
it  was  in  the  nature  of  a  penalty,  and,  therefore,  relievable  in 
equity,  (b) 

61.  It  is  held  in  an  old  case,  that  where  money  was  lent  upon 
mortgage  at  five  per  cent,  and  the  mortgagor  covenanted  to  pay 
six  per  cent,  if  he  made  default  for  the  space  of  sixty  days  after 
the  time  of  payment,  the  Court  decreed  that  from  default  made 
he  should  pay  six  per  cent.  The  covenant  being  the  agreement 
of  the  parties,  was  not  to  be  relieved  against  as  a  penalty.  And 
the  same  doctrine  was  held  by  the  House  of  Peers  in  1725,  on 

an  appeal  from  a  decree  of  the  Court  of  Chancery  of 
152  *    *  Ireland.     It  does  not,  however,  appear  how  a  distinction 

can  be  made  between  the  creation  of  a  penalty  by  a  pro- 
viso, or  by  a  covenant,  (c) 

(a)  Edwards  v.  Warwick,  2  P.  Wins.  176. 

(b)  Jory  v.  Cox,  Prec.  in  Cha.  160.  Strode  v.  Parker,  2  Vera.  316.  Nichols  v.  Maynard, 
3  Atk.  519.    Brown  v.  Barkham,  1  P.  Wms.  652. 

(c)  Halifax  v.  Higgins,  2  Vera.  134.  Stanhope  v.  Manners,  2  Eden,  197.  Burton  v.  Slat- 
tery,  5  Bro.  Pari.  Ca.  233. 

December,  1833,  no  arrears  of  rent  or  of  interest  in  respect  of  any  sum  of  money 
charged  upon  or  payable  out  of  any  land  or  rent,  or  in  respect  of  any  legacy,  or  any 
damages  in  respect  of  such  arrears  of  rent  or  interest,  shall  be  recovered  by  any  dis- 
tress, action  or  suit,  but  within  six  years  next  after  the  same  respectively  shall  have 
become  due,  or  next  after  an  acknowledgment  of  the  same  in  writing  shall  have  been 
given  to  the  person  entitled  thereto,  or  his  agent,  signed  by  the  person  by  whom  the 
same  was  payable,  or  his  agent ;  provided,  nevertheless,  that  where  any  prior  mortga- 
gee or  other  incumbrancer  shall  have  been  in  possession  of  any  land,  or  in  the  receipt 
of  the  profits  thereof,  within  one  year  next  before  an  action  or  suit  shall  be  brought  by 
any  person  entitled  to  a  subsequent  mortgage  or  other  incumbrance  on  the  same 
land,  the  person  entitled  to  such  subsequent  mortgage  or  incumbrance  may  recover  in 
such  action  or  suit  the  arrears  of  interest  which  shall  have  become  due  during  the 
whole  time  that  such  prior  mortgagee  or  incumbrancer  was  in  such  possession  or 
receipt  as  aforesaid,  although  such  time  may  have  exceeded  the  said  term  of  six  years.] 


Title  XV.     Mortgage.     Ch.  IV.  s.  62—66.  657 

62.  It  is  a  general  rule  that  interest  shall  not  be  allowed  upon 
interest;  and  that  no  agreement,  entered  into  at  the  time  when 
a  morto-ao-e  is  made,  will  be  sufficient  to  make  future  interest 
principal.1 

63.  A  mortgagee  compelled  the  mortgagor  to  agree  that  the 
interest  should  be  turned  into  principal  at  the  end  of  every  six 
months.  But  Lord  Hardwicke  relieved  the  mortgagor ;  and  said 
that  interest  was  seldom  allowed  to  be  turned  into  principal, 
except  upon  the  advance  of  fresh  money;  and  even  then,  it 
was  reckoned  a  hardship  upon  the  mortgagor,  and  an  act  of 
oppression,  (a) 

64.  There  are,  however,  several  exceptions  to  this  rule : 2 — 
1.  Where  the  mortgagee  assigns  over  the  mortgage  to  a  stranger 
bond  fide,  and  with  the  consent  of  the  mortgagor,  all  the  money 
paid  by  the  assignee  that  was  due  to  the  mortgagee  will  be  con- 
sidered as  principal ;  and  the  assignee  shall  have  interest  upon 
the  interest  then  due,  and  paid  by  him,  as  well  as  upon  the 
principal  originally  lent,  (b) 

65. — 2.  Where  an  account  has  been  regularly  settled  between 
the  parties,  and  signed  by  them,  it  will  carry  interest,  because  in 
such  a  case  there  is  an  implied  contract  on  the  part  of  the  debtor 
to  pay.  And  all  contracts  to  pay,  (says  Lord  Thurlow,)  undoubt- 
edly give  a  right  to  interest  from  the  time  when  the  principal 
ought  to  have  been  paid,  (c) 

66.  WJiere  an  account  has  been  settled,  between  a  mortgagor 
and  a  mortgagee,  by  a  Master  in  Chancery,  pursuant  to  an  order, 
and  confirmed  by  the  Court,  interest  will  be  allowed  upon  what 
is  due,  from  the  time  of  such  settlement,  even  though  part  of  it 
be  in  respect  of  costs,  (d) 

[So  where  a  mortgage  of  land  was  made,  by  way  of  collateral 

(a)  Thornhill  v.  Evans,  2  Atk.  330.     Sackett  v.  Bassett,  5  Mad.  58. 

(6)  Askenhurst  v.  James,  3  Atk.  270.    Conway  v.  Shrimpton,  5  Bro.  Pari.  Ca.  187. 

(c)  Brown  v.  Barkham,  1  P.  Wins.  652.     Boddam  v.  Piiley,  2  Bro.  C.  C.  2. 

(d)  Kelley  v.  Bellew,  4  Bro.  Pari.  Ca.  495.    2  Ves.  471.    1  T.  &  Pus.  477. 


1  But  if  a  new  note  is  given  for  the  amount  of  principal  and  interest  then  due  ;  or  the 
debt  is  otherwise  liquidated,  by  adding  the  interest  to  the  principal,  as  a  new  capital 
carrying  interest,  by  agreement  of  the  parties,  it  is  valid.  Brown  v.  Barkham,  1  P. 
Wms.  652.  And  see  Brown  v.  Brent,  1  H.  &  Munf.  4 ;  Hamilton  v.  Le  Grange,  4  T. 
R.  613 ;  2  H.  Bl.  144,  S.  C. ;  Pierce  v.  Rowe,  1  N.  Hamp.  R.  179  ;  Dow  v.  Drew,  3  N. 
Hamp.  R.  40. 

2  Sec,  on  the  subject  of  annual  rests,  ante,  ch.  2,  §  30,  note. 


658  Title  XV.     Mortgage.     Ch.  IV.  s.  66—71. 

security,  for  such  balance  as  might  eventually  be  due  from  the 
customer  to  his  banker,  it  was  no  objection  to  charging  the  land 
with  such  balance,  that  it  had  been  partly  composed  of  interest 
turned  into  principal  by  rests,  and  interest  on  that  interest, 
according  to  the  course  of  dealing  between  a  banker  and  his 

customers,  (a)] 
153  *        *  67.  —  3.   Where   the    Court  of  Chancery  enlarges   the 

time  for  the  mortgagor,  that  is  a  favor,  as  he  would  other- 
wise be  foreclosed ;  and  it  is  but  just  and  reasonable  that  he 
should  pay  for  it.  (b) 

68.  Thus  where  on  a  bill  to  foreclose,  principal,  interest,  and 
costs  were  lumped  into  one  sum  by  the  Master;  and  it  was 
held,  that  if  the  mortgagor,  or  a  puisne  mortgagee,  prayed  longer 
time  to  redeem,  they  must  pay  interest  for  the  whole  sum.  (c) 

69.  —  4.  In  the  case  of  infants,  interest  is  not  generally 
allowed  on  interest.  For  one  of  the  grounds  upon  which  in- 
terest is  turned  into  principal,  is  as  a  punishment  on  the  mort- 
gagor for  the  non-performance  of  his  contract,  which  ought  not 
to  operate  against  an  infant ;  but  where  a  benefit  accrues  to  an 
infant,  it  is  otherwise. 

70.  J.  S.  mortgaged  his  estate  to  the  plaintiff,  and  died,  leav- 
ing the  defendant,  his  daughter  and  heir,  who  was  an  infant,  and 
had  nothing  to  subsist  on  but  the  rents  of  the  mortgaged 
estate.  The  interest  being  suffered  to  run  in  arrear  for  three 
years  and  a  half,  the  plaintiff  grew  uneasy  at  it,  and  threatened 
to  enter  on  the  estate,  unless  his  interest  might  be  made  prin- 
cipal ;  upon  which  the  defendant's  mother,  with  the  privity  of 
her  nearest  relations,  stated  the  account ;  and  the  defendant  her- 
self, who  was  then  near  of  age,  signed  it.  The  account  being 
admitted  to  be  fair,  it  was  held  that  though  regularly  interest 
should  not  carry  interest,  yet  in  some  cases,  and  in  some  circum- 
stances, it  would  be  injustice  if  interest  should  not  be  made 
principal.  And  the  rather  in  this  case,  because  it  was  for  the 
infant's  benefit,  who,  without  this  agreement,  would  have  been 
destitute  of  a  subsistence,  (d) 

71.  [  Where  a  mortgagee  in  possession  receives  the  rents  of  the 
mortgaged  estate,  after  his  debt  has  been  satisfied,  and  does  not 

(a)  Rufford  v.  Bishop,  5  Russ.  346.  (b)  1  M.  &  Yo.  567. 

(o)  Neale  v.  Attorney-Gen.,  Moseley,  246.    (Bruere  v.  Wharton,  7  Sim.  483.) 
(c?)  Chesterfield  v.  Cromwell,  1  Ab.  Eq.  287. 


Title  XV.     Mortgage.     Ch.  IV.  5.  71—74.  659 

immediately  pay  them  over  to  the  mortgagor,  but  retains  them 
for  his  own  use,  he  is  chargeable  with  interest  thereon,  for  he  is 
availing  himself  of  another  man's  money,  (a) 

72.  So,  when  he  is  in  the  actual  possession  of  the  mortgaged 
premises,  though  not  in  receipt  of  rent,  he  is,  in  fact,  in  receipt 
of  profits,  and  he  will  be  charged  with  an  occupation  ;  and  the 
Court  of  Chancery  will  direct  annual  rests  to  be  made  with  the 
view  to  the  computation  of  interest.] 

*  73.  All  persons  seised  in  fee  simple  of  lands  in  mort-  *  154 
gage  are  bound  to  pay  the  interest  of  the  mortgage  ;  and 
even  a  tenant  for  life  may  be  compelled  by  the  person  in  remain- 
der or  reversion  to  keep  down  the  interest  of  a  mortgage.  But 
where  a  person  is  tenant  in  tail  in  possession,  and  in  receipt  of 
the  rents  and  profits  of  lands  which  are  mortgaged,  if  he  suffers 
the  interest  to  run  in  arrear,  neither  the  issue  in  tail,  nor  the 
remainder-man,  can  compel  him  to  pay  the  interest  incurred  dur- 
ing his  possession.  For  the  courts  of  law,  as  well  as  those  of 
equity,  consider  the  remainder  or  reversion  to  be  in  the  power  of 
the  tenant  in  tail.  Nor  will  his  personal  estate  be  liable,  after 
his  death,  to  the  payment  of  the  interest,  which  became  due  in 
his  lifetime,  (b) 

74.  A  person  made  a  mortgage  for  years ;  then  entailed  the 
estate  mortgaged  on  himself  and  the  heirs  male  of  his  body, 
remainder  to  his  brother,  and  died  leaving  issue  an  infant  son, 
who  suffered  the  interest  to  accrue  on  the  mortgage  for  several 
years ;  and  died  just  before  he  came  of  age,  leaving  a  personal 
estate.  Whereupon  it  was  objected  that  the  executors  of  the 
infant  son,  seeing  their  testator  took  the  rents  and  profits  of  the 
estate,  ought  to  keep  down  the  interest ;  the  rather  for  that  he 
never  had  it  in  his  power  to  bar  the  remainder  by  a  recovery. 

Lord  Talbot  said  there  was  no  precedent  of  a  tenant  in  tail 
being  obliged  to  keep  down  the  interest  on  a  mortgage.  A  ten- 
ant for  life  was  without  doubt  compellable  to  do  it ;  but  as  a 
tenant  in  tail  had  an  estate  which  might  last  forever,  and  the 
remainder  over  was  not  assets,  nor  regarded  in  law,  and  as  such 
tenant  in  tail  had  a  power  over  the  estate,  to  commit  any  waste 
or  spoil  thereon,  a  court  of  equity  had  never  enjoined  him  to 
keep  down  the  interest.     "Wherefore  he  refused  to   make  any 

(a)  Wilson  v.  Metcalfe,  1  Euss.  530.    S^e  1  Mad.  269.  {b)  Tit.  3,  c.  1,  §  2S. 


660  Title  XV.     Mortgage.     Ch.  IV.  s.  74—79. 

order  upon  the  executors  of  the  tenant  in  tail,  to  pay  the  arrears 
of  interest ;  though  it  appeared  there  was  near  twenty  years' 
interest  due ;  and  though  the  tenant  in  tail  died  during  his  in- 
fancy, and  consequently  before  it  was  in  his  power  to  have  barred 
the  remainder  by  a  recovery,  (a) 

75.  It  was,  however,  determined  in  a  subsequent  case,  that 
although  a  tenant  in  tail  of  full  age  was  not  obliged  to  keep 
down  the  interest  of  a  mortgage,  for  the  benefit  of  the  remainder- 
man or  reversioner,  yet  where  an  infant  was  tenant  in  tail  of 

lands  in  mortgage,  and  his  guardian  or  trustees  were  in 
155  *     the  receipt  *  of  the  rents  and  profits,  he  should  be  liable 

to  the  payment  of  the  interest  as  far  as  the  rents  and 
profits  would  extend. 

76.  Jane  Pitt  was  tenant  for  life,  with  power  to  charge  any 
sum  not  exceeding  .£4000  on  the  estate,  which  was  limited  to 
her  son  William  Pitt,  in  tail,  remainder  to  the  right  heirs  of  his 
father.  Jane  Pitt  charged  the  estate  accordingly,  and  died. 
William  Pitt  died  without  issue,  and  under  age,  leaving  the 
interest  in  arrear.  The  Court  determined  that  W.  Pitt,  being  an 
infant,  his  guardian  ought  to  have  applied  the  rents  and  profits 
of  the  estate  to  keep  down  the  interest ;  therefore  what  ought  to 
be  done  by  the  guardian  should  be  considered  as  done  ;  and  con- 
sequently the  real  estate  discharged,  so  far  as  the  rents  and 
profits  in  the  life  of  the  infant  would  go  in  discharge ;  but  if 
that  was  not  sufficient,  it  was  to  be  an  incumbrance  on  the  re- 
mainder, (b) 

77.  If  a  tenant  in  tail  of  land,  or  the  husband  of  a  tenant  in 
tail,  pays  the  interest  of  a  mortgage  on  the  estate  tail,  neither 
he,  nor  any  person  in  his  place,  will  be  permitted  to  set  up  that 
as  a  fact  undone ;  but  the  remainder-man  shall  have  the  benefit 

of  it.  (c) 

78.  In  consequence  of  the  principle  that  all  mortgages  are 
deemed  part  of  the  personal  estate,  it  is  now  fully  established 
that  the  money  due  upon  mortgage  is  to  be  paid  to  the  executor  of 
the  mortgagee,  by  reason  of  a  rule  of  equity  that  the  satisfaction 
should  accrue  to  the  fund  which  sustained  the  loss,  (d) 

79.  [And  where  the  mortgage  money  due  on  a  mortgage  in 

(a)  Chaplin  v.  Chaplin,  3  P  Wms.  235.    (h)  Sarjeson  v.  Cruise,  cited  1  Ves.  478.   2  Atk.  416. 

(c)  Amesbury  v.  Brown,  1  Ves.  477. 

(d)  Thornborough  v.  Baker,  1  Cha.  Ca.  283.     S.  C.  3  Swan.    Appendix,  628. 


Title  XV.     Mortgage.    Ch.  IV.  5.  79—81.  661 

fee  is  paid  to  the  heir  of  the  mortgagee,  the  executor  may  recover 
it  from  him.  (a)] 

80.  Where  a  person  having  a  mortgage  in  fee,  devised  all  his 
lands  and  tenements  to  the  plaintiff,  and  after  giving  several 
legacies,  gave  all  the  residue  of  his  personal  estate  to  (leaving  a 
blank  which  he  never  filled  up,)  whom  he  appointed  sole  execu- 
tor ;  the  plaintiff,  as  devisee  of  all  the  lands  and  tenements, 
claimed  the  mortgage  money.  But  the  administratrix  insisted, 
that  by  the  rule  and  course  of  the  Court,  where  lands  were  mort- 
gaged, the  money  was  accounted  part  of  the  personal  estate, 
though  the  mortgage  was  in  fee  ;  even  where  the  money  was 
payable  to  the  mortgagee  and  his  heirs.  That  the  personal 
estate  being  devised  to  the  executor,  was  a  good  declara- 
tion that  it  *  should  go  to  the  executor,  though  void  as  a  *  156 
devise,  for  want  of  naming  an  executor,  and  consequently 
belonging  to  the  administratrix.     Decreed  accordingly,  (b) 

81.  It  has  been  stated,  that  in  all  cases  of  mortgages,  the 
money  borrowed  is  the  principal,  and  the  land  the  accessary  :  it 
follows,  that  when  the  debt  is  discharged,  the  interest  of  the  mort- 
gagee in  the  land  ceases  in  equity,  though  the  -legal  estate  con- 
tinues in  him.  (c)  ^ 

(a)  Tabor  v.  Tabor,  3  Swan.  Append.  636. 

(b)  Winne  v.  Littleton,  2  Cha.  Ca.  51.     Canning  v.  Hicks,  2  Cha.  Ca.  187. 

(c)  Ante,  c.  2,  §  42,  43. 


1  The  mortgage  being  made  to  secure  the  payment  of  the  money  due,  it  follows  that  a 
change  of  the  security,  so  long  as  the  same  debt  remains,  is  no  discharge  of  the  mort- 
gage. It  has  therefore  been  often  held  that  though  the  former  security  be  given  up  and 
a  new  one  given  for  the  same  debt,  the  mortgage  still  remains  in  force ;  even  though 
the  new  security  be  of  an  higher  nature  than  the  old,  or  other  names  be  added  to  the 
original  obligation.  Davis  v.  Maynard,  9  Mass.  242 ;  Pond  v.  Clarke,  14  Conn.  E. 
334;  Watkins  v.  Hill,  8  Pick.  522;  Dana  v.  Binney,  7  Verm.  501;  Pomroy  v.  Rice, 
16  Pick.  22;  Elliot  v.  Sleeper,  2  N.  Hamp.  R.  525;  Bank  v.  Willard,  10  N.  Hamp. 
210;  Franklin  v.  Cannon,  1  Root,  500;  Brinckerhoff  v.  Lansing,  4  Johns.  Ch.  73,  74; 
Dunham  v.  Dey,  1 5  Johns.  R.  555  ;  Bolles  v.  Chauncey,  8  Conn.  R.  390  ;  [Hadlock  v.  Bul- 
finch,  31  Maine,  (1  Red.)  246  ;'Cullum  v.  Branch  Bank  of  Mobile,  23  Ala.  797  ;  Union 
Bank  of  Louisiana  v.  Stafford,  12  How.  IT.  S.  327.]  But  where  the  mortgage  was 
given  to  a  surety  of  the  mortgagor  in  a  promissory  note,  and  was  conditioned  to  pay 
him  the  contents  of  the  note  or  indemnify  him  against  his  liability  on  it ;  and  afterwards 
the  note  was  taken  up  by  the  mortgagor,  on  giving  in  its  stead  another  note  with  a  dif- 
ferent surety ;  it  was  held  that  the  mortgage  was  discharged.  Abbot  v.  Upton,  19  Pick. 
434.     And  sec  Grugeon  v.  Gerard,  4  Young  &  Coll.  119. 

The  lien  on  the  land  is  also  discharged  by  a  tender  and  refusal,  though  the  debt  re- 
mains due.      1  Pow.  on  Mortg.  6;  1  Inst.  209  6;  Jackson  v.  Crafts,  18  Johns.  110. 

vol.  i.  56 


662  Title  XV.     Mortgage.     Ch.  iy.  s.  81. 

But  a  tender  after  breach  of  the  condition,  does  not  turn  the  equity  of  redemption  into 
an  absolute  legal  estate  in  the  mortgagor.  Merritt  v.  Lambert,  7  Paige,  344.  See  ante, 
ch.  2,  §  39,  note,  and  cases  there  cited. 

For  the  law  of  tender,  see  2  Greenl.  on  Evid.  tit.  Tender,  §  GOO — 611  a. 

Where  no  place  of  payment  is  appointed  by  agreement  of  the  parties,  the  money  is 
to  be  paid  or  tendered  to  the  mortgagee  in  person,  or  at  his  house,  as  in  other  cases 
of  personal  obligation  to  pay  money.  Litt.  §  340;  1  Inst.  210  a ;  Williams  v.  Hance, 
7  Paige,  581. 

[Where  a  tender  of  the  debt  was  made  to  the  mortgagee,  in  pursuance  of  an  agree- 
ment that  if  the  mortgage  debt  was  paid  at  a  certain  time  subsequent  to  its  becoming 
due,  no  advantage  should  be  taken  of  a  foreclosure,  it  was  held  that  interest  should  not 
be  cast  on  the  debt  after  the  tender.  McNeil  v.  Call,  19  N.  H.  403.  A  receipt  in  full 
of  the  mortgage  debt  by  the  mortgagee,  is  an  equitable  release  of  the  mortgage.  Mar- 
riott v.  Handy,  8  Gill.  31.  A  mortgagee  may  release  his  mortgage  by  a  sufficient  parol 
agreement,  though  the  mortgage  be  under  seal,  and  the  debt  unpaid.  Wallis  v.  Long, 
16  Ala.  738.  A  mortgage  of  land  can  be  discharged  only  by  payment  or  release.  Had- 
lock  v.  Bulfinch,  31  Maine,  (1  Red.)  246.] 


663 


CHAP.  V. 

ORDER   IN    WHICH    MORTGAGES    ARE    PAID,   AND    MEANS   OF   GAINING   A 

PRIORITY. 


Sect.    1.  Mortgages  paid  according  to 
their  Priority. 
5.  But   not    preferred  to    Stat- 
utes, $c. 
7.  Legal  Incumbrances   prefer- 
red to  equitable  ones. 
9.   Where    Possession    of    the 
Deeds  gives  Priority. 
17.  A    defective    Mortgage     not 
preferred   to  a  second  ef- 
fective one. 
19.  But    will    be    preferred    to 

Bond  Debts. 
22.  Priority    may     be     lost    by 
Fraud. 


Sect.  28.  Of  Tacking  subsequent  to 
prior  Incumbrances. 

29.  Effect  of  obtaining  a  prior 
Term  for  Years. 

33.  Where  a  Declaration  of  Trust 
of  a  Term  is  sufficient. 

35.  How  far  an  Incumbrance 
will  protect. 

40.  At  what  Time  a  prior  Incum- 
brance may  be  got  in. 

45.  Notice. 

46.  Direct  Notice. 

55.   Constructive  Notice. 


Section  1.  Where  there  are  several  mortgages  on  an  estate, 
they  must  be  paid  according  to  the  priority  of  their  respective 
dates;  in  pursuance  of  a  rule  adopted  from  the  civil  law, —  Qui 
prior  est  in  tempore,  potior  est  in  jure.1 

2.   Where  a  clause  is  inserted  in  a  mortgage  deed,  by  which 


1  In  the  United  States,  where  all  conveyances  of  lands  arc  registered,  and  the  regis- 
tration is  notice  to  all  the  world,  in  cases  not  specially  excepted  by  statute,  incumbrances 
generally  have  priority,  not  in  the  order  of  their  dates,  but  in  the  order  of  their  regis- 
tration. The  oidy  exceptions,  known  to  the  editor,  are  the  case  of  the  registration  of 
the  assignment  of  a  mortgage  ;  which  is  declared  in  the  statutes  of  several  States  not 
to  operate  of  itself  as  notice  to  the  mortgagor,  so  as  to  invalidate  any  payment  which 
he  may  subsequently  make  to  the  mortgagee,  before  he  has  actual  notice  of  the  assign- 
ment :  see  Indiana  Rev.  St.  1843,  ch.  29,  §  71 ;  New  York  Rev.  St.  pt.  2,  ch.  3,  §  48, 3d 
ed. ;  and  the  case  of  a  mortgage  given  for  the  purchase-money  at  the  time  of  the  convey- 
ance of  the  title.  This  incumbrance,  in  New  York  and  Indiana,  is  preferred  over  prior 
judgments  against  the  mortgagor;  see  New  York  Rev.  St.  pt.  2,  ch.  1,  tit.  5,  §  5  ;  In- 
diana Rev.  St.  1 843,  ch.  29,  §  68  ;  and  in  Delaware,  if  recorded  in  sixty  days  from  its 
date,  it  is  preferred  over  judgments  and  every  other  lien  created  by  the  mortgagor. 


664  Title  XV.     Mortgage.     Ch.  V.  s.  2. 

the  lands  mortgaged  are  made  a  security  for  any  further  sums 
which  shall  be  advanced  by  the  mortgagee,  a  subsequent  loan 
will  be  considered  as  part  of  the  original  transaction,  and  will 
have  a  priority  over  a  second  mortgage,  though  subsequent  to 
such  second  mortgage ;  and  though  the  first  mortgagee  had 
notice  of  the  second  mortgage  at  the  time  when  he  made  the 
subsequent  loan.1 

Del.  Rev.  St.  1829,  p.  91.  See  farther, post,  §  50,  note.  Also,  Vol.  IV.  tit.  32,  ch.  29  ; 
4  Kent,  Comm.  174 — 180;  Grant  v.  Bissett,  1  Caines,  Cas.  112.  [Boyee  v.  Boyce,  6 
Rich.  Eq.  (S.  C.)  302.] 

If  a  mortgage  is  made  by  a  tenant  in  common,  of  his  share  of  the  land  held  in  com- 
mon, the  lien  thus  created  will  attach  to  the  portion  of  the  land  afterwards  set  off  to  the 
mortgagor,  in  a  regular  process  of  partition.  Crosby  v.  Allyn,  5  Greenl,  453  ;  Williams 
College  v.  Mallett,  3  Fairf.  398;  Randell  v.  Mallett,  2  Shepl.  51. 

1  Where  a  mortgage  to  secure  future  advances  or  liabilities,  is  set  up  against  another 
and  subsequent  incumbrance,  it  is  requisite  that  .the  mortgage  deed  should  disclose  the 
fact  that  it  was  intended  to  cover  such  advances,  giving  such  information  as  to  the  ex- 
tent and  certainty  of  the  contract,  that  a  junior  creditor  may,  by  inspection  of  the 
record,  and  by  common  prudence  and  ordinary  diligence,  ascertain  the  extent  of  the 
incumbrance.  This  is  requisite  to  secure  good  faith,  and  prevent  error  and  imposition 
in  dealing.  The  prior  mortgagee  cannot  enlarge  his  demand  beyond  what  appears  upon 
record,  or  is  there  indicated  with  sufficient  certainty  to  put  subsequent  creditors  or  pur-  • 
chasers  upon  inquiry,  and  enable  them  to  ascertain,  by  inquiry  aliunde,  the  extent  of  the 
incumbrance  ;  or,  from  its  nature,  as  in  case  of  a  mortgage  for  indemnity,  that  there  is 
a  prior  lien  which  is  incapable  of  present  definite  ascertainment.  See  4  Kent,  Comm. 
175.  176;  Hubbard  v.  Savage,  8  Conn.  215,  219;  Crane  v.  Deming,  7  Conn.  387,  396  ; 
St.  Andrew's  Ch.  v.  Tompkins,  7  Johns.  Ch.  R.  14;  Garber  v.  Henry,  6  Watts.  57; 
United  States  v.  Hooe,  3  Cranch,  73,  89  ;  Conard  v.  Atlantic  Ins.  Co.  1  Pet.  448  ;  Bad- 
lam  v.  Tucker,  1  Pick.  389,  398 ;  Shirras  v.  Caig,  7  Crunch,  34,  50,  51.  [A  mortgage 
made  to  secure  future  advances  is  valid  against  the  creditors  of  the  mortgagor,  if  it  is 
free  from  fraud.  Seaman  v.  Fleming,  7  Rich.  Eq.  (S.  C.)  283;  Collins  v.  Carlisle,  13 
111.  254.  But  see  In  re  Young's  Estate,  3  Md.  Ch.  Decis.  461.  A  mortgage  to  secure 
advances  and  credits  to  be  made  within  a  time  limited  therein,  secures  none  made  after- 
wards. Miller  v.  Whittier,  36  Maine,  (1  Heath,)  577  ;  Trescott  v.  King,  2  Selden,  N.  Y. 
147.  Where  a  mortgage  is  given  to  secure  a  party,  who  is  bound  to  accept  drafts,  the 
lien  of  the  mortgage  attaches  from  the  date  of  the  negotiation  or  acceptance  of  the 
draft.     Choteau  v.  Thompson,  2  Ohio,  (N.  S.)  114.] 

By  the  law  of  New  Hampshire,  Rev.  Stat.  1842,  ch.  131,  §  2,  no  estate  can  be  incum- 
bered, by  any  agreement,  "unless  it  is  inserted  in  the  condition  and  made  part  thereof, 
stating  the  sum  of  money  to  be  secured,  or  other  thing  to  be  performed."  But  this 
has  been  expounded  by  considering  it  only  to  require  that  the  nature  and  extent  of  the 
claim  be  so  far  set  forth  as  to  leave  no  doubt  as  to  its  identity.  The  same  statute,  §  3, 
provides  that  no  mortgage  shall  be  valid  "  for  the  payment  of  any  sum  of  money,  or 
the  performance  of  any  other  thing,  the  obligation  or  liability  to  the  payment  of  which 
arises,  is  made  or  contracted  after  the  execution  and  delivery  of  such  mortgage."  But 
it  is  held,  that  a  mortgage,  intended  to  secure  a  present  debt,  and  also  future  advances, 
not  then  contracted  for,  is  valid  as  to  the  present  debt,  and  void  only  as  to  the  residue. 
Leeds  v.  Cameron,  3  Sumn.  R.  488  ;  New  Hamp.  Bank  v.  Willard,  10  N.  Hamp.  R.  210. 


Title  XV.     Mortgage.     Ch.  V.  s.  3—6.  665 

3.  A  mortgaged  to  B  for  a  term  of  years,  to  secure   a  sum  of 
money  already  lent,  and  also  such  other  sums  as  B  should 
afterwards  *  lend  or  advance  to  him.     A  made  a  subse-     *  158 
quent  mortgage  to  C  for  a   certain   sum,  with  notice  of 

the  first  mortgage  ;  and  then  the  first  mortgagee,  having  notice 
of  the  second  mortgage,  advanced  a  further  sum.  The  question 
was,  upon  what  terms  the  second  mortgagee  should  redeem  the 
first  mortgage.  Lord  Cowper  declared  the  second  mortgagee 
should  not  redeem  the  first  mortgage  without  paying  all  that  was 
due,  as  well  the  money  lent  after,  as  that  before,  the  second  mort- 
gage was  made ;  for  it  was  the  folly  of  the  second  mortgagee, 
with  notice,  to  take  such  a  security,  (a) ] 

4.  Where  there  are  several  equitable  interests  affecting  the 
same  estate,  they  will  also  attach  upon  it,  according  to  the  re- 
spective times  at  which  they  commenced ;  it  being  a  rule  of  the 
Court  of  Chancery,  that  equity  follows  the  law.(6)  2 

5.  Mortgages  are,  however,  not  preferred  in  a  court  of  equity 
to  statutes,  judgments,  or  recognizances ;  but  each  of  these  secu- 
rities takes  place  according  to  the  priority  of  its  date,  in  the  same 
manner  as  in  a  court  of  law. 

6.  Sir  W.  Bassett  being  seised  in  fee  of  several  real  estates, 
and  indebted  to  several  persons,  by  mortgages,  judgments,  and 
otherwise,  devised  all  his  estates  to  trustees,  to  be  sold  for  the 
payment  of  his  debts  and  legacies. 

Controversies  having  arisen  among  the  creditors  concerning 
the  priority  of  their  respective  securities,  two  suits  were  insti- 
tuted in  the  Court  of  Chancery,  where  it  was  decreed  that  the 

(«)  Gordon  v.  Graham,  7  Vin.  Ab.  52.     Vernon  r.  Bethell,  2  Eden,  110. 
(b)  2  P.  Wms.  495.    Frere  r.  Moore,  8  Price,  475. 

1  Sec  Brinckerhoff  v.  Marvin,  5  Johns.  Ch.  320,  326  ;  2  Pow.  on  Mortg.  534,  a,  note 
(E)  by  Coventry;  Demainbray  v.  Metcalfe,  2  Verm.  69S,  note  (3)  by  Raithby. 

-  The  general  doctrine  may  here  be  noted,  that  where  one  creditor  has  a  lien  on  two 
estates,  and  another  creditor  has  a  lien  on  one  of  them  only,  the  latter  may  compel 
the  former  to  resort  first  to  the  fund  that  is  not  common  to  them  both.  Lanoy  v.  D. 
of  Athol,  2  Atk.  446 ;  Aldrich  v.  Cooper,  8  Ves.  388;  Greenwood  v.  Taylor,  1  Russ. 
&  Mylne,  185,  187  :  Evertson  v.  Booth.  19  Johns.  486  ;  Dorr  v.  Shaw,  4  Johns.  Ch. 
R.  17;  Hawlcy  v.  Mancius,  7  Johns.  Ch.  P.  174,  184;  Conrad'r.  Harrison,  3  Leigh, 
532;  Wiggin  v.  Dorr,  3  Sumn.  410,  414.    And  see  1  Story,  Eq.  Jur.  §  559,633—635,  642. 

If  the  mortgagee,  upon  the  insolvency  or  bankruptcy  of  the  mortgagor,  proves  his 
entire  debt  under  the  proceedings  for  settlement  of  the  estate,  receiving  his  dividend 
upon  the  whole  amount,  it  is  a  waiver  of  the  mortgage.  Hooker  v.  Olmstcad,  6  Pick. 
481 ;  Amory  v.  Francis,  16  Mass.  308  ;  2  Madd.  Chan.  655. 

56* 


666  Title  XV.     Mortgage.    Ch.  V.  s.  6—8. 

money  arising  from  the  sale,  should  be  applied,  in  the  first  place, 
to  pay  the  mortgages,  and  in  the  next  place  the  judgment  and 
statute  creditors. 

The  persons  whose  judgments  were  prior  to  the  mortgages, 
appealed  to  the  House  of  Peers,  insisting  that  they  ought  to 
be  paid  their  several  debts  according  to  the  due  course  of  law 
and  equity  ;  that  their  securities  by  judgment  did  in  law  affect 
the  real  estate,  and  the  trust  thereof,  from  the  several  days  on 
which  such  judgments  were  signed,  without  the  aid  of  the  will, 
therefore  ought  to  take  place  according  to  their  respective  pri- 
orities, as  well  on  equities  of  redemption,  as  on  legal  estates  ; 
more  especially  in  preference  to  mortgages  which  were  not  in 
being  when  those  judgments  were  signed,  which  could  not, 
therefore,  take  from  the  appellants  any  security  that  was  before 
legally  or  equitably  vested  in  them ;  or  render  their  judg- 
159*  ments  *in  any  degreeless  effectual  than  they  were  at  the 
respective  times  of  signing  the  same. 

On  the  other  side  it  was  said  that  the  equity  of  redemption  of 
the  testator's  estate  was  actually  mortgaged  without  notice  of  the 
judgments,  and  before  the  same  were  extended ;  that,  therefore, 
those  mortgages  ought  to  be  satisfied  before  them ;  and  that  in  a 
court  of  equity,  judgment  creditors  could  only  compel  the  sale  of 
an  estate  of  inheritance  for  their  satisfaction.  If  that  estate  hap- 
pened to  be  in  mortgage,  it  was  not  reasonable  that  the  mort- 
gagees should  be  decreed  to  convey  to  a  purchaser,  without  first 
receiving  their  money. 

It  was  ordered  that  the  appellants  should  be  let  into  a  satis- 
faction of  their  debts,  according  to  the  priority  of  their  several 
securities,  (a) 

7.  Where  incumbrances  are  all  merely  equitable,  a  mortgage 
of  the  legal  estate  to  a  person  who  has  no  notice  of  such  incum- 
brances, will  give  such  mortgagee  a  priority  over  them.  But 
if  any  of  the  equitable  incumbrances  are  excepted,  that  cir- 
cumstance will  give  them  a  priority  over  those  that  are  not 
excepted. 

8.  T.  Gibson  &  Co.  being  scriveners,  and  having  large  sums 
of  money  of  other  people  in  their  hands,  had  lent  Mr.  Stiles, 
upon  a  mortgage  of  the  manors  of  Bremhill  and  Cadenham,  and 

(a)  Symmes  v.  Symonds,  4  Bro.  Pari.  Ca.  328. 


Title  XV.     Mortgage.     Ch.  V.  s.  8.  667 

other  lands  in  Wiltshire,  several  sums,  which  in  1743,  were  re- 
ported to  amount  to  above  £50,000  :  and  those  estates  were 
then  decreed  to  be  sold  for  payment  thereof.  Before  this,  Gib- 
son and  his  partners  had  given  declarations  of  trust  to  several 
of  their  creditors,  who  had  money  in  their  hands,  assigning 
them  several  parts  of  the  mortgage  money  due  by  Mr.  Stiles, 
and  declaring  themselves  trustees  for  them  according  to  their 
respective  demands.  These  declarations  of  trust  amounted 
originally  to  £  27,900,  of  which  £2000  was  to  be  paid  out  of 
£8500  due  to  Gibson  &  Co.  by  Sir  John  Eyles  upon  the  manor 
of  Gidea  Hall;  and  the  remaining  £25,900  out  of  the  money 
due  upon  Bremhill.  Gibson  &  Co.  were  reported  the  best  pur- 
chasers of  Bremhill  and  Cadenham ;  the  first  at  £50,000,  and 
the  last  at  £10,000.  This  report  being  confirmed,  by  lease  and 
release  in  1744,  Bremhill  was  conveyed  to  Gibson  and  Sutton 
who  were  the  surviving  partners  ;  Cadenham  was  conveyed  to  a 
trustee  for  them. 

*  Gibson  &  Co.  being  indebted  by  two  several  bonds  to     *160 
Mr.  Pelham  in   £23,500   and  interest,  and  to   Mr.  Win- 
nington  in  £15,000  and  interest,  by  lease  and  release,  in  1744, 
conveyed  to  Mr.  Pelham  and  Mr.  Wilmington   all  their  interest 
in  Gidea  Hall,  which  had  been  then  lately  conveyed  to  the  trus- 
tees to  sell,  for  payment  of  the  debt  due  to  Gibson  ;  and  also 
conveyed  to  them  the  manor  of  Bremhill,  and  other  lands  which 
had  belonged  to  the  late  Mr.  Stiles,  with  a  proviso  for  redemp- 
tion upon  payment  of  £23,500  and  interest  to  Mi*.  Pelham,  and 
£15,000  and  interest  to   Mr.  Wilmington  ;  but  in  the  deed  was 
contained  an  exception  of  an  assignment  and  declaration  of  trust 
made  by  Gibson  &  Co.  in  October,  1735,  to  John  Witham  for 
£7000  and  interest,  part  of  the  money  due  to  them  from  Stiles 
on  the  security  of  Bremhill;  another  to   Sarah  and  Benjamin 
Lethuilier,  of  18th  February,  1741,  for  £5500,  part  also  of  that 
security ;  another  to  Hinde  and  Pickard,  of  20th  February,  1741, 
for  £2000,  as  part  also  thereof;  another  to  Ashby,  of  8th  April, 
1742,  for  £2500  on  the  same  account ;  another  to  Sarah  Lethu- 
ilier, of  2d  September,  1742,  for  £2000,  part  of  the  money  se- 
cured upon  Gidea  Hall. 

The  manor  of  Gidea  Hall  was  afterwards  sold ;  and  Mr.  Pel- 
ham in  a  great  measure,  paid  off  out  of  the  purchase-money,  as 
was  also  Sarah  Lethuilier  her  £2000. 


668  Title  XV.     Morteraere.    Ch.  V.  s.  8. 


o  "r> 


T.  Gibson  died  in  1744.  Sutton,  the  surviving  partner,  being 
a  bankrupt,  and  there  being  a  considerable  deficiency  for  pay- 
ment of  the  creditors,  the  plaintiff,  as  executor  to  Mr.  Winning- 
ton,  brought  his  bill  for  a  sale  of  Bremhill,  and  the  other  prem- 
ises comprised  in  the  mortgage  of  1744,  and  to  have  the  priority 
of  such  creditors  as  had  any  demands  on  the  mortgaged  premises 
settled. 

It  came  out  upon  the  answers  of  the  defendants,  that  there 
were  several  other  creditors  who,  previous  to  Mr.  Pelham  and 
Mr.  Wilmington's  mortgage,  had  assignments  and  declarations 
of  trust  of  and  upon  the  mortgage  money  secured  by  Bremhill, 
most  of  which  were  prior  in  time  to  those  excepted  in  Mr.  Pel- 
ham  and  Mr.  Wilmington's  mortgage. 

The  question  made  between  the  defendants  was,  whether  the 
excepted  and  unexcepted  creditors,  being  all  but  equitable  in- 
cumbrancers, under  their  several  declarations  of  trust  from  Gib- 
son &  Co.,  were  not  to  be  satisfied  according  to  their 
161  *  several  *  priorities :  or  whether  those  excepted  had  not 
gained  a  preference,  by  the  notice  which  Mr.  Pelham  and 
Mr.  Wilmington  had  of  their  demands ;  for  Mr.  P.  and  Mr.  W. 
having  the  legal  as  well  as  an  equitable  estate  in  them,  it  was 
allowed  that,  till  after  they  were  satisfied,  nothing  more  could 
be  drawn  from  them  than  the  sums  excepted  in  their  mortgage. 

Lord  Hardwicke.  The  bill  is  brought  by  the  plaintiff,  as 
representative  of  Mr.  Winnington,  for  a  satisfaction  of  his  de- 
mand out  of  the  mortgaged  premises,  and  if  those  not  sufficient, 
out  of  Gibson's  general  estate  ;  next,  to  have  the  priority  of  the 
several  creditors  settled.  In  this  arises  a  question  between  the 
unexcepted  and  excepted  creditors,  in  the  conveyance  made  to 
Mr.  Pelham  and  Mr.  Winnington ;  whether  the  exception  of 
some  of  the  creditors  taken  sparsim,  and  not  as  they  stood  in 
point  of  time,  will  give  them  any  preference  to  those  who  were 
not  excepted. 

Mr.  Stiles  was  seised  of  these  two  manors  of  Bremhill  and 
Cadenham  ;  and  having  borrowed  upon  a  mortgage  £50,000  of 
Gibson  and  Sutton,  scriveners,  they  who  lent  their  clients' 
money,  gave  them  security  by  declarations  of  trust,  upon  the 
security  which  they  had  themselves  from  Mr.  Stiles.  The  dec- 
larations of  trust  thus  given  by  them,   amounted,  originally,  to 


Title  X.     Mortgage.     Ch.  V.  s.  8.  669 

£27,900,  of  which  £2,000  was  part  of  a  debt  from  Sir  John 
Eyles,  secured  on  Gidea  Mall.     Mr.  Stiles  being  dead,  Gibson 
and  Sutton  being  reported  the  best  purchaser  of  Bremhill  and 
Cadenham,  and  having  got  in  the  legal  estate  in  May,  1744,  they 
in  June  following,  convey  these  premises  by  way  of  security  to 
Mr.  Pelham  for  £23,500,  and  to  Mr.  Wilmington  for   £15,000, 
payable  on  the  15th  of  December  then  next,  in  which  security 
they  except  several  declarations  of  trust  upon,  and  assignments 
of;  part  of  the  mortgage  money  secured  on  Bremhill,  amounting 
to  £20,000,  and  one  of  £2000,  secured  upon  the  money  due 
from  Gidea  Hall.     Hence  it  is  clear  that  Mr.  Pelham  and  Mr. 
Wilmington  had  notice  of  these  incumbrances ;  but  as  clear  that 
they  had  no  notice  of  any  other.     After  this,  Gibson  dies,  and. 
Sutton  becomes  a  bankrupt.     Now  it  is  come  to  be  a  question  be-> 
tween  their  creditors,  excepted  in  Mr.  Pelham  and  Mr.  Winning- 
ton's  securities,  and  those  not  excepted,  whether  they  all  shall 
stand  in  their  priority  in  order  of  time  ;  or  whether  those  excepted 
have  thereby   gained  any  preference  to  the  others.     No 
*  case  exactly  similar  to  the  present  has  been  cited ;  and  I     *  162 
wish  that,  all  being  equally  fair  and  honest  creditors,  I 
could  in  this  general  shipwreck,  let  them  all  in  equally :  but  as 
the  rules  of  the  Court  will  not  warrant  me  in  so  doing,  one  or 
the  other  set  of  creditors  must  lose. 

The  questions,  therefore,  are, — -1st.  How  the  right  stood  as 
between  themselves  before  the  conveyance  to  Mr.  Pelham  and 
Mr.  Wilmington  ?  2dly.  What  alteration  was  made  by  that  con- 
veyance ? 

As  to  the  first,  all  the  creditors  being  but  equitable  incum- 
brancers, and  none  of  them  having  a  better  right  to  call  for  the 
legal  estate  than  the  other,  the  rule  Qui  prior  est  tempore,  potior 
est  in  jure,  must  have  place  between  them ;  and  yet  they  had 
left  in  the  power  of  Gibson  and  Sutton  to  give  a  preference  to 
any  one  of  them  they  pleased,  even  to  the  very  last  of  them,  by 
granting  him  the  legal  estate,  who  must  then  have  been  preferred 
to  all  the  rest ;  for  having  got  the  law  on  his  side,  and  equal 
equity  with  the  others,  this  Court  could  not  take  the  benefit  of 
the  law  from  him.  (a) 

The  next  question  is,  whether  the  excepted  creditors  have 
gained  any  preference  by  that  exception,  which  on  the  one  hand 

(a)  Tit.  12,  c.  3,  §  34. 


670  Title  XV.     Mortgage.     Ch.  V.  s.  8. 

is  contended  to  be  notice  sufficient  to  Mr.  Pelham  and  Mr.  Win- 
nington  to  make  them  trustees  for  such  excepted  creditors;  and 
on  the  other  is  said  to  be  only  a  notice  to  them,  that  so  much  and 
no  more  was  to  be  drawn  out  of  their  estate ;  but  that  they  were 
no  way  concerned  to  whom  the  money  drawn  from  them  should 
be  paid.  I  am  sorry  to  say  that  the  exception  has  the  effect  of 
making  Mr.  Pelham  and  Mr.  Wilmington  trustees  for  the  ex- 
cepted creditors  ;  because  I  heartily  wish  all  the  creditors  could 
come  in  equally;  but  not  having  the  power  of  making  it  so,  the 
rule  of  the  Court  must  take  place. 

The  argument  used  for  the  excepted  put  the  unexcepted  credi- 
tors to  a  dilemma.  We  are,  say  they,  prior  to  Mr.  Pelham  and 
Mr.  Winnington,  who  are  prior  to  you ;  consequently,  we  must 
be  prior  to  you  too.  Had  this  been  a  conveyance  with  a  cove- 
nant from  Mr.  Pelham  and  Mr.  Winnington  to  pay  those  credi- 
tors, it  had  been  impossible  to  say  that  the  other  creditors  should 
have  any  benefit  of  that  covenant :  but  Mr.  Pelham  and  Mr.  Win- 
nington would  have  been  not  only  trustees  for,  but  debtors  to, 
those  whom  they  had  so  covenanted  to  pay;  or  had 
163*  *the  conveyance  been  to  trustees,  to  raise  money  by  sale 
or  mortgage  to  pay  these  creditors,  and  then  to  pay  Mr. 
Pelham  and  Mr.  Winnington,  the  legal  estate  being  conveyed  for 
their  benefit,  would  have  given  them  a  preference.  Now  this 
conveyance,  though  by  way  of  mortgage,  to  Mr.  Pelham  and  Mr. 
Winnington,  comes  very  near  a  conveyance  to  trustees  to  sell,  as 
those  creditors  could  only  have  remedy  by  a  sale ;  for  having  no 
legal  estate  in  them,  a  decree  of  foreclosure  would  have  signified 
nothing  to  them,  as  foreclosure  is  of  no  effect  but  where  the  party 
foreclosing  has  the  legal  estate.  The  question,  therefore,  turns 
upon  the  rules  of  the  Court  as  to  notice,  which  binds  the  con- 
science of  the  party,  as  to  the  right  of  another  party,  whereof  he 
has  notice ;  and  this  Court  always  raises  an  implied  trust  from 
that  notice.  So  Mr.  Pelham  and  Mr.  Winnington,  having  notice 
of  these  excepted  creditors,  became  trustees  for  them,  and  their 
conscience  was  bound  as  to  those  creditor's  demands  ;  but  could 
not  be  so  as  to  other  creditors,  of  whom  they  had  no  notice. — 
Upon  the  rules  of  the  Court,  therefore,  I  am  of  opinion  that  I 
cannot  divest  the  excepted  creditors  of  the  right  they  have  ac- 
quired by  Mr.  Pelham  and  Mr.  Wilmington's  having  notice  of 
their  demands,  (a) 

(a)  Ingram  v.  Gibson,  MSS.  Kep.  1752.    Arab.  153. 


Title  XV.     Mortgage.   Ch.  V.  s.  9.  671 

9.  It  was  laid  down  by  the  late  Mr.  J.  Buller,  that  where  a 
second  mortgagee  is  in  possession  of  the  title  deeds  of  the  estate 
morto-ao'ed,  that  circumstance  will  entitle  him  to  a  priority  over 
the  first  mortgagee ;  because  where  a  person  lends  money  upon 
mortgage,  without  requiring  the  title  deeds  to  be  delivered  to 
him,  he  thereby  enables  the  mortgagor  to  practice  a  fraud  upon 
a  third  person.  This  rule  is,  however,  much  too  general,  as  there 
are  many  cases  in  which  the  title  deeds  cannot  be  delivered  up. 
And  the  doctrine  always  was,  that  nothing  but  a  voluntary,  dis- 
tinct, and  unjustifiable  concurrence  on  the  part  of  the  first  mort- 
gagee, to  the  mortgagors  retaining  the  title  deeds,  should  be  a 
reason  for  postponing  his  priority,  (a)  } 

(«)  Goodtitle  v.  Morgnn,[infra.     Treat,  of  Eq.  B.  l,"c.  3,  §  4. 


1  It  has  already  been  seen,  ante,  ch.  1 ,  §  20,  note,  that  whether  an  equitable  mortgage  can 
be  created  in  the  United  States,  by  the  mere  deposit  of  title  deeds,  is  at  least  extremely 
doubtful.  It  would  seem  equally  questionable  whether  a,  priority  can  be  gained  by  the 
possession  of  the  title  deeds  alone  without  any  other  element  of  superior  equity  in  the 
case. 

The  principle  of  the  floctrine  in  the  text  has  been  stated  by  Chancellor  Kent  in  the 
following  terms  : — "  It  is  understood  to  have  been  the  old  rule  in  the  English  Chancery, 
that  if  a  person  took  a  mortgage,  and  voluntarily  left  the  title  deeds  with  the  mort- 
gagor, he  was  to  be  postponed  to  a  subsequent  mortgagee,  without  notice,  and  who  was 
in  "possession  of  the  title  deeds.  The  reason  of  the  rule  was,  that,  by  leaving  the  title 
deeds,  he  enabled  the  mortgagor  to  impose  upon  others  who  have  no  registry  to  resort 
to,  except  in  the  counties  of  Yorkshire  and  Middlesex,  and  who,  therefore,  can  only 
look  for  their  security  to  the  title  deeds,  and  the  possession  of  the  mortgagor.  The 
rule  was  so  understood  and  declared,  by  Mr.  Justice  Burnet,  in  Ryall  v.  Rolle,  (1  Atk. 
168,  172  ;  1  Vcsey,  360,)  and  by  Mr.  Justice  Buller,  in  Goodtitle  v.  Morgan,  (1  Term 
Rep.  762,)  and  there  are  decisions  which  have  given  great  weight  to  the  circumstance 
of  the  title  deeds  being  in  possession  of  the  junior  mortgagee.  Thus  in  Head  v.  Eger- 
ton,  (3  P.  "Wins.  280,)  the  Lord  Chancellor  said,  it  was  hard  enough  upon  a  subsequent 
mortgagee,  that  he  had  lent  his  money  upon  lands  subject  to  a  prior  mortgage,  without 
notice  of  it,  and,  therefore,  he  could  not  add  to  his  hardship,  by  taking  away  from  him 
the  title  deeds,  and  giving  them  to  the  elder  mortgagee,  unless  the  first  mortgagee  paid 
him  his  money ;  especially  as  the  first  mortgagee,  by  leaving  the  title  deeds  with  the 
mortgagor,  had  been,  in  some  measure,  accessary  in  drawing  in  the  defendant  to  lend 
him  money.  This  case,  however,  so  far  from  establishing  what  was  supposed  to  be  the 
old  rule  of  equity,  evidently  contradicts  it,  and  admits  the  better  title  in  the  first  mort- 
gagee. So,  in  the  case  of  Stanhope  v.  Verney,  before  Lord  Northington,  (ButlerV 
note  to  Co.  Litt.  290,  296,  §  13,)  the  second  mortgagee,  without  notice,  had  possession 
of  the  title  deeds,  but  the  Chancellor  did  not  give  him  the  preference  on  that  single 
circumstance,  but  because  he  also  had  got  possession  of  an  outstanding  term.  There 
does  not  seem,  therefore,  to  lie  the  requisite  evidence  of  the  existence  of  any  such  rule 
in  equity,  as  has  been  stated  by  some  of  the  judges ;  and  if  there  was,  a  different  rule 
has  been  since  established.    It  is  now  the  settled  English  doctrine,  that  the  mere  cir- 


672  Title  XV.     Mortgage.     Ch.  V.  5.  10—13 


©  v"& 


10.  Thus,  where  it  appeared  that  the  mortgagor  got  back  the 
title  deeds  from  the  first  mortgagee,  upon  a  reasonable  pretence, 
Lord  Cowper  dismissed  the  bill  brought  by  the  second  mortgagee 
to  postpone  the  first,  (a)  . 

11.  Mr.  Fonblanque  mentions  a  case,  where  it  appearing  that 
the  first  mortgagee  had  required,  and  was  assured  by  the  mort- 
gagor, that  he  had  delivered  to  him  all  the  title  deeds ; 

164*     Lord  *  Thurlow  held,  there  must  be  a  voluntary  leaving 
of  the  deeds  to  entitle  the  second  mortgagee  to  a  pri- 
ority, (b) 

12.  In  another  case  Lord  Thurlow  held  that  a  mortgagee  of  a 
reversion,  who  had  not  the  title  deeds,  should  not  be  postponed 
to  a  second  mortgagee,  whose  mortgage  was  made  after  the  mort- 
gagor had  come  into  possession,  and  who  had  got  the  title  deeds  ; 
there  being  neither  fraud  nor  gross  negligence,  (c) 

13.  One  Basnett  having  deposited  the  title  deeds  of  an  estate 
in  the  hands  of  Plumb,  to  whom  he  was  indebted,  afterwards 
mortgaged  the  estate  to  Fluitt,  to  whom  he  was  also  indebted. 
Basnett  having  become  a  bankrupt,  Plumb  filed  his  bill  against 
Fluitt  for  a  sale  of  the  estate,  and  to  restrain  the  defendant  from 
proceeding  at  law  to  recover  possession  of  the  premises.  The 
circumstances  of  the  transaction  were  disputed.     The  plaintiff 

(a)  Peter  v.  Russell,  1  Ab.  Eq.  321.        (b)  Pinner  v.  Jemmett,  Treat,  of  Eq.  B.  1,  c.  3,  §  4. 
(c)  Tourle  v.  Rand,  2  Bro.  C.  C.  650. 


cnmstance  of  leaving  the  title  deeds  with  the  mortgagor,  is  not,  of  itself,  sufficient  to 
postpone  the  first  mortgagee,  and  to  give  the  preference  to  a  second  mortgagee,  who 
takes  the  title  deeds  with  his  mortgage,  and  without  notice  of  the  prior  incumbrance. 
There  must  be  fraud,  or  gross  negligence,  which  amounts  to  it,  to  defeat  the  prior 
mortgage.  There  must  be  something  like  a  voluntary,  distinct,  and  unjustifiable  con- 
currence, on  the  part  of  the  first  mortgagee,  to  the  mortgagor's  retaining  the  title  deeds, 
before  he  shall  be  postponed.  Lord  Thurlow,  in  Tourle  v.  Rand,  (2  Bro.  650.)  said  he 
did  not  conceive  of  any  other  rule  by  which  the  first  mortgagee  was  to  be  postponed, 
but  fraud  or  gross  negligence,  and  that  the  mere  fact  of  not  taking  the  title  deeds  was 
not  sufficient ;  and  that  if  there  were  any  cases  to  the  contrary,  he  wished  they  had 
been  named.  So  the  rule  was  also  understood  by  Chief  Baron  Eyre,  in  Plumb  v 
Eluitt,  (2  Anst.  432,)  and  has  since  been  repeatedly  recognized.  (Lord  Eldon,  in  6 
Vesey,  183,  190;  Sir  William  Grant,  in  12  Vesey,  130 ;  1  Fonb.  153,  155,  note.)  It  is 
admitted,  by  these  same  high  authorities,  to  be  just,  that  the  mortgagee,  who  leaves  the 
title  deeds  with  the  mortgagor,  so  as  to  enable  him  to  commit  a  fraud,  by  holding  him- 
self out  as  absolute  owner,  should  be  postponed ;  but  the  established  doctrine  is,  that 
nothing  but  fraud,  express  or  implied,  will  postpone  him."  Berry  v.  Mutual  Ins.  Co., 
2  Johns.  Ch.  R.  608—610. 


Title  XV.     Mortgage.     Ch.  V.  s.  13.  673 

endeavored  to  fix  the  defendant  with  actual  notice  of  the  de- 
posits ;  and  for  that  purpose  read  the  testimony  of  Basnett,  who 
swore  that  he  had  informed  the  defendant  of  the  deposit  of  the 
title  deeds  before  the  execution  of  the  mortgage ;  and  this  evi- 
dence was  admitted  by  the  Court. 

Lord  Chief  Baron  Eyre  said — The  legal  estate  being  in  the 
defendant,  the  question  was,  whether  the  plaintiff  could  raise  a 
trust  upon  his  estate,  so  as  to  gain  a  priority  for  his  own  demand. 
It  was  fully  settled  that  a  deposit  of  title  deeds,  as  a  security  for 
a  debt,  amounted   to  an  equitable   mortgage.     If  the  plaintiff 
could  prove  actual  or   constructive  notice  of  the  deposit  in  the 
defendant,  it  raised  a  trust  in  him  to  the  amount  of  that  equitable 
mortgage.     As  to  the  evidence  of  actual  notice,  the  testimony  of 
Basnett  alone,  unsupported  and  opposed,  was  too  weak  to  found 
a  decree,  or  even  to  direct  an  issue  upon  it.     Swearing  to  the 
fraudulent  intention  of  his  own  deed,  he  could  expect  little  credit 
in  a  court  of  equity.    A  great  deal  had  also  been  said  about  con- 
structive notice,  which  he  took  to  be  in  its  nature  no  more  than 
evidence  of  notice,  the  presumptions  of  which  were  so  violent, 
that  the  Court  would  not  allow  even  of  its  being  controverted. 
Thus,  if   a  mortgagee  had  a  deed  put  into  his  hands,  which 
recited  another  deed,  that  showed  a  title  in  some  other  person, 
the  Court  would  presume  him  to  have  notice,  and  would  not  per- 
mit any  evidence  to  disprove  it.     The  only  reason  that  could 
raise  in  this  case  a  notion  of  constructive  notice  was,  that  the 
deeds  were  not  forthcoming.     But  was  it  possible  that 
*this  circumstance  could  of  itself  be  notice  of  the  hands     *165 
into  which  they  were  fallen,  or  the  purpose  to  which  they 
had  been  applied  ?     At  the  utmost,  it  could  only  be  a  circum- 
stance of  evidence,  to  show  that  there  was  reason  for  further 
inquiry ;  but,  being  unsupported  by  any  other  circumstances,  it 
proved  nothing. 

It  was  said,  no  man  would  advance  money  upon  an  estate 
without  seeing  the  title  deeds,  unless  with  a  fraudulent  intention. 
He  wished  he  saw,  in  a  court  of  equity,  some  solid  distinction 
established  between  a  consideration  which  was  an  old  debt,  and 
a  sum  advanced  de  novo.  There  certainly  was  a  great  difference. 
In  the  one  case  the  creditor  jumped  at  any  security  he  could  get; 
he  took  the  deed  of  conveyance,  and  trusted  to  get  the  title  deeds 
vol.  i.  57 


674  Title  XV.     Mortgage.     Ch.  V.  s.  13—14. 


s ' 


afterwards.  But  till  such  a  distinction  was  established,  it  was 
difficult  to  apply  the  reasoning  which  would  belong  to  it. 

The  person  who  took  the  legal  estate  without  the  deeds,  in  a 
case  like  this,  appeared  to  him,  unless  there  was  fraud,  to  be  less 
blamable  than  he  who  took  the  deeds  without  the  estate. 

Upon  all  the  circumstances,  he  could  see  nothing  in  the  case 
that  amounted  to  constructive  notice. 

With  respect  to  the  general  question,  the  effect  of  leaving  the 
title  deeds  in  the  hands  of  the  mortgagor,  the  most  intelligible 
rule,  and,  in  his  opinion,  the  most  agreeable  to  justice,  would 
have  been  to  say,  that  if  a  man  took,  as  his  security  for  his 
mortgage,  a  single  deed,  and  left  the  other  deeds  in  the  hands  of 
the  mortgagor,  so  as  to  enable  him  to  commit  a  fraud,  that  he 
should  in  all  such  cases  be  postponed,  without  reference  to  the 
quantity  of  pains  or  diligence  which  he  exercised  to  obtain  the 
deeds  ;  for  whether  the  pains  were  more  or  less,  the  mischief  was 
the  same.  And  if  he  had  found  the  rule  so  laid  down,  he  should 
have  been  perfectly  satisfied.  But  it  had  been  decided  otherwise 
iu  the  late  cases ;  which  established  the  rule,  that  nothing  but 
fraud,  or  gross  and  voluntary  negligence  in  leaving  the  title 
deeds,  would  oust  the  priority  of  the  legal  claimant. 

In  the  present  case,  all  the  negligence,  or  all  the  activity  in 
the  world,  would  have  left  the  defendant  in  exactly  the  same 
situation  in  which  he  then  was.  He  took  his  mortgage  as  the 
only  security  he  could  get ;  if  it  was  already  mortgaged,  he  was 
only  where  he  was  before.  He  seized  it  as  a  plank,  to  save 
something;  for  as  a  second  mortgage  it  was  worth  nothing. 
166*  *The  plaintiff  having  therefore  failed  in  making  out 
•his  case,  either  by  actual  or  constructive  notice,  and  the 
general  proposition  not  being  supported,  which,  if  established, 
must  apply  to  purchases  as  well  as  to  mortgages,  the  bill  must 
be  dismissed  with  costs,  (a) 

14.  In  a  subsequent  case,  Lord  Eldon  said,  "  The  doctrine  at 
last  is,  that  the  mere  circumstance  of  parting  with  the  title  deeds, 
unless  there  is  fraud,  concealment,  or  some  such  purpose,  or 
some  concurrence  in  such  purpose,  or  that  gross  negligence  that 
amounts  to  evidence  of  a  fraudulent  intention,  is  not  of  itself  a 
sufficient  ground  to  postpone  the  first  mortgage.     I  agree  with 

(a)  Plumb  v.  Fluitt,  2  Anstr.  B.  432. 


Title  XV.     Mortgage.     Ch.  V.  s.  14—16.  675 

Chief  Justice  Eyre,  I  should  have  been  glad  to  have  found  the 
rule  established  in  the  Court  the  other  way ;  at  the  same  time, 
allowance  must  be  made  for  the  cases  put  by  Mr.  Fonblanque,  of 
joint  tenants  and  tenants  in  common,  cases  of  necessary  excep- 
tion. All  cannot  have  the  deeds  ;  therefore,  if  the  rule  could  be 
pressed  to  the  extent  to  which  Mr.  Justice  Buller  carried  it,  those 
cases  must  be  excepted,  in  which,  from  the  nature  of  the  title,  the 
deeds  may  be  honestly  out  of  the  possession.  With  that  excep- 
tion, such  a  rule  would  avoid  a  great  deal  of  fraud  in  mortgage 
titles ;  upon  which  this  observation  arises,  that  no  man  can  tell 
when  he  is  perfectly  secure.     But  there  is  not  such  a  rule."  (a) 

15.  [In  Harper  v.  Faulder,  (b)  it  was  decided  that  the  first 
incumbrancer,  leaving  the  deeds  with  the  mortgagor,  should  not 
be  postponed,  unless  the  possession  of  the  title  deeds  were  legally 
incident  to  his  security. 

In  that  case,  estates  were  vested  in  trustees  in  trust  to  raise 
,£35,000  next  to  indemnify  the  lenders  of  that  sum  from  a  rent- 
charge  of  £400  per  annum,  and  against  a  portion  of  £5000  for 
younger  children.  In  order  to  raise  part  of  the  £35,000,  the 
trustees,  in  consideration  of  £5000,  granted  an  annuity  to  R, 
which  was  secured  tfy  a  term  and  a  judgment  not  docketed. 
The  annuitant  permitted  the  deeds  to  remain  in  the  custody  of 
the  trustees,  who  afterwards  made  a  mortgage  for  raising  the 
other  part  of  the  £35,000,  without  informing  the  mortgagee  of 
F.'s  incumbrance.  The  question  was,  whether  the  annuitant 
should  be  postponed  to  the  mortgagee.  Sir  John  Leach,  V.  C, 
decided  in  the  negative,  observing,  that  not  only  was  the 
possession  of  the  *  title  deeds  not  legally  incident  to  F.'s  *  167 
estate,  and  that  he  was  not  required,  upon  the  principle  of 
reasonable  diligence,  to  have  stipulated'  for  them ;  but  that  it 
would  have  been  a  breach  of  trust  in  the  trustees  to  have  given 
one  incumbrancer  those  deeds  which  they  were  bound  to  keep 
for  the  security  of  all  persons  advancing  money  upon  the  credit 
of  their  trust.] 

16.  It  should,  however,  be  observed,  that  where  a  second 
mortgagee  has  got  possession  of  the  title  deeds,  a  court  of  equity 
will  not  take  them  from  him,  unless  the  first  mortgagee  pays  him 
his  money,  (c) 

(a)  Evans  V.  Bicknell,  6  Ves.  190.     Bamett  v.  Weston,  12  Ves.  130. 

(b)  4  Mad.  129.  (c)  Head  v.  Egerton,  3  P.  Wms.  280. 


676  Title  XV.     Mortgage.     Ch.  V.  s.  17—19. 

17.  If  a  person  mortgages  his  lands  by  a  defective  conveyance, 
and  afterivards  mortgages  them  by  an  assurance  that  is  good  and 
effectual.)  to  a  person  who  has  no  notice  of  the  defective  convey- 
ance, the  second  mortgage  will  prevail ;  because  that  carries  the 
legal  estate  ;  and  equity  will  not  interfere,  where  both  parties  are 
equally  innocent. 

18.  Copyhold  lands  were  mortgaged,  but  without  a  surren- 
der ;  they  were  afterwards  mortgaged  to  another  person,  and 
surrendered  to  him.  The  Master  of  the  Rolls,  on  solemn  argu- 
ment, dismissed  the  bill  of  the  first  mortgagee  with  costs,  and 
held  that  equity  would  not  supply  the  defect  of  a  surrender 
against  a  person  who  came  in  by  title,  upon  surrender  of  the 
same  premises. 

The  case  was  reheard  before  Lord  Cowper,  who  was  of  the 
same  opinion  ;  and  took  this  difference,  that  when  there  are  two 
persons  that  have  equal  equity,  then  those  that  have  the  legal 
estate  shall  prevail,  because  there  is  no  equity  to  take  from  such 
persons  the  title  that  they  have  gained  at  law.  (But  if  the  con- 
tending parties  in  equity  have  not  equal  equity,  then  those  that 
have  the  greatest  equity  shall  prevail  against  the  legal  title  ;  as, 
if  a  creditor  takes  hold  of  the  land  by  a  feoffment  in  mortgage, 
with  livery,  equity  will  supply  the  defective  conveyance  against 
a  subsequent  judgment  creditor ;  because  the  judgment  creditor, 
not  relying  on  the  land  for  his  security,  he  hath  not  an  equal 
equity  to  have  it  applied  for  the  payment  of  his  debt,  as  he  that 
took  it  in  mortgage.)  (a)  1 

19.  But  if  a  person  mortgages  his  land  by  a  defective  convey- 
ance, and  there  be  subsequent  debts,  which  did  not  originally 
affect  the  land,  such  as  debts  by  bond,  there  the  defect  of  such 
conveyance  will  be  supplied,  in  equity,  against  such  incum- 
brancers, though  they  afterwards  acquire  a  legal  title  to  the  land. 
For  since  the  subsequent  incumbrancers  did  not  originally  take 
the  lands  for  their  security,  nor  had  an  intention  to  affect  them, 
when  afterwards  the  lands  are  affected,  and  they  come  in  under 
the  person  who  was  obliged  in  conscience  to  make  the  security 
good,  they  will  not  be  allowed  to  stand  in  his  place  ;  but  will  be 
postponed  to  such  defective  conveyance.2 

(a)  Oxwick  v.  Plumer,  5  Bac.  Ab.  43. 


1  See  Coote  on  Mort.  223 — 230. 

2  If  a  prior  mortgagee  has  a  mortgage  of  two  funds,  and  a  second  mortgagee  has  a 


Title  XV.     Mortgage.     Ch.  V.  s.  20.  677 

*20.  Henry  Francis,  father  of  the  defendant  Henry,  in  *  168 
consideration  of  £400,  mortgaged  the  premises  by  feoff- 
ment in  fee  to  the  plaintiff's  testator,  but  made  no  livery  thereon, 
and  covenanted  for  further  assurance.  Henry  Francis,  the  father, 
borrowed  of  Burgh,  the  testator,  =£77  on  bond;  and  promised 
that  the  mortgaged  premises  should  be  security  for  it.  He  after- 
wards made  his  will;  and  thereof  appointed  his  son,  Henry 
Francis,  executor.  Burgh  died,  and  the  plaintiff  proved  his  will. 
The  defendant,  Henry  Francis,  confessed  several  judgments  on 
bonds  entered  into  by  his  father,  namely,  seven  judgments  as 
hen,  and  one  as  executor  to  his  father.  One  of  these  seven 
judgments  was  obtained  by  Hayman,  a  defendant,  in  Hilary 
Term,  1670,  for  £400 ;  all  the  other  judgments  were  entered 
about  the  same  time. 

The  cause  was  heard  by  Lord  Keeper  Finch,  assisted  by  Judge 
Wild,  who  declared,  the  Court  was  fully  satisfied  that  the  plain- 
tiff ought  to  be  relieved,  and  the  said  judgments  ought  not  to 
incumber  the  premises,  till  the  mortgage  money  was  fully  paid  ; 
wherein  the  Court  did  not  ground  its  judgment  upon  the  man- 
ner of  obtaining  the  judgments,  all  in  a  term,  and  most  of  them 
together ;  nor  on  the  special  way  whereby  the  heir  charged  the 
lands,  by  pleading  news  per  descents  ;  but  upon  the  true  nature 
of  the  case.  The  Court  declared,  that  the  debt  due  upon  mort- 
gage did  originally  charge  the  lands,  which  the  bonds  did  not, 
till  they  were  reduced  to  judgments  ;  and  it  ought  not  to  be  in 
the  heir's  power,  by  confessing  judgments,  to  charge  the  lands 
in  the  prejudice  of  that  equity,  the  rather  because  of  the  cove- 
nant for  further  assurance.  And  though  the  mortgage  was  de- 
fective in  law,  for  want  of  livery,  yet  equity,  which  supplied  that 
defect,  charged  the  lands;  and  though  the  creditors  had  no 
notice,  yet  they  should  be  bound,  because  they  were  put  in  no 
worse  condition  than  they  ought  to  be,  viz.  to  be  postponed  to 
the  mortgage.  Therefore,  it  was  decreed,  that  the  defendant 
Henry,  the  heir,  should  convey  to  the  plaintiff  or  her  assigns  in 


mortgage  of  only  one  of  the  same  funds,  the  former  must  first  exhaust  the  fund  mort- 
gaged to  himself  alone,  before  he  can  resort  to  that  which  is  mortgaged  to  both  credit- 
ors ;  and  this,  though  there  may  be  a  question  as  to  the  validity  of  the  first  mortgage. 
York  &  Jersev  Steamboat  Co.  v.  Jersey  Co.  1  Hopk.  460. 

57* 


678  Title  XV.     Mortgage.     Ch.  V.  s.  20—23. 

fee,  redeemable  on  payment  of  £400,  and  the  premises  to  be 
held  quietly  against  the  plaintiffs,  (a) } 

21.  A  surrendered  a  copyhold  estate,  by  way  of  mortgage,  for 
money  lent ;  but  the  surrender  was  not  presented.  A  became 
a  bankrupt ;    his  assignees  were  admitted  to  the  copyhold,  and 

brought  their  ejectment  to  obtain  possession  of  it.     The 
169  *     *  mortgagee  brought  his  bill  in  Chancery  to   be  relieved. 

The  Court  decreed  a  perpetual  injunction  in  behalf  of  the 
mortgagee  ;  for  though  it  was  said  that  the  creditors  of  the  bank- 
rupt were  equally  valuable  as  the  mortgagee,  and  having  the 
title  at  law,  they  ought  to  be  preferred ;  yet  it  was  overruled, 
because  the  other  creditors  of  the  bankrupt  did  not  lend  on  the 
credit  of  the  land,  as  the  mortgagee  did ;  therefore,  when  such . 
creditors  came  under  the  bankrupt  to  charge  the  land,  they  ought 
to  stand  in  his  place,  and  come  under  the  same  obligation  of 
conscience,  to  make  good  the  defective  security,  (b) 

22.  The  priority  of  payment,  according  to  the  date  of  e'ach 
mortgage,  or  other  incumbrance,  may  be  lost  by  any  fraud  or 
artifice  of  the  first  mortgagee,  in  concealing  his  own  mortgage, 
for  the  purpose  of  inducing  another  person  to  lend  money  on  the 
same  lands.  For  in  such  a  case  the  Court  of  Chancery  will  give 
a  priority  to  the  subsequent  incumbrance,  (c) 

23.  A  person  who  was  a  counsellor,  having  lent  £8000  to  A, 
upon  a  mortgage  in  fee  of  a  manor,  and  on  a  statute,  in  the  pen- 
alty of  £16,000,  was  afterwards  consulted  by  B  as  to  a  loan  of 
£2000  to  A  ;  encouraged  him  to  lend  the  money,  and  drew  the 
mortgage  deed,  in  which  he  inserted  a  covenant,  that  the  estate 
was  free  from  incumbrances.  It  was  decreed  that  B,  the  second 
mortgagee,  should  have  a  priority,  (d) 

(a)  Burgh  v.  Francis,  1  Ab.  Eq.  320.  Finch.  28.  5  Bac.  Ab.  41.  S.  C.  3  Swan.  At>p. 
536.     Lord  Nottingham's  MSS. 

(6)  Taylor  v.  Wheeler,  2  Vera.  5C4.     1  P  Wms.  279. 

(c)  Treat,  of  Eq.  B.  1,  c.  3,  §  4.  (1  Story,  Eq.  Jur.  §  390.  Lee  v.  Munroe,  7  Crane'.:,  3GG, 
368.     Lasalle  v.  Barnett,  1  Blackf.  150.)  (d)  Draper  v.  Borlace,  2  Vern.  2i>i  - 

1  It  has  been  doubted  whether  this  case  authorizes  the  general  position,  that  equity 
will  in  every  case,  postpone  a  subsequent  judgment  creditor  to  a  prior  defective  mort- 
gage. For,  in  the  first  place,  it  is  a  general  rule  of  equity,  that  the  Court  will  not 
interpose  in  prejudice  of  a  defendant  having  a  legal  interest,  for  a  valuable  considera- 
tion, and  without  notice  of  the  plaintiffs  equity  ;  and  secondly,  as  the  defect  arises  from 
the  neglect  of  the  mortgagee  himself,  he  does  not  appear  entitled  to  much  favor  to  the 
prejudice  of  a  more  prudent  creditor.  See  1  Fonbl.  on  Eq.  38  ;  Coote  on  Mortg.  227,  h. 


Title  XV.    Mortgage.     Ch.  V.  s.  24—27.  679 

24.  A  mortgagee  was  present  when  the  mortgagor  was  in 
treaty  with  the  father  of  the  lady  for  the  marriage  of  his  son ; 
and  the  lands  which  were  in  mortgage,  being  agreed  to  be  settled 
upon  his  marriage,  to  the  intended  husband  for  life,  remainder  to 
the  wife  for  life,  remainder  to  the  issue  of  the  marriage  ;  it  was 
not  opposed  by  the  mortgagee,  who  fraudulently  concealed  his 
mortgage,  and  at  the  same  time  privately  assured  the  father  of 
the  young  man  that  he  would  trust  to  his  personal  security.  It 
was  decreed  that  the  son,  and  the  issue  of  the  marriage,  should 
hold  the  lands  quietly  against  the  mortgagee  and  his  heirs,  (a) 

25.  But  where  the  party  to  whom  the  fraud  is  imputed  was 
not  conusant  of  the  treaty,  nor  in  any  manner,  nor  for  any  fraud- 
ulent purpose,  confederating  with  the  party  practising  the  fraud, 
this  principle  does  not  apply. 

26.  Thus,  if  a  person,  intending  to  advance  money  on  a  mort- 
gage, applies  to  a  prior  incumbrancer  to  know  whether  he 

has  *any  charge  on  the  estate  on  which  he  intends  to  lend  *170 
his  money,  and  he  denies  that  he  has  any  charge,  he  will 
thereby  lose  his  priority.  But  the  person  intending  to  advance 
the  money,  or  his  agent,  must  inform  the  prior  incumbrancer 
that  he  intends  to  lend  money  on  the  lands ;  for  the  prior  incum- 
brancer is  not  bound  to  answer,  unless  he  knows  of  such  inten- 
tion ;  as  the  question  may  be  asked  merely  to  satisfy  an  imperti- 
nent curiosity,  (b) 

27.  It  was  formerly  held,  that  if  a  mortgagee  was  witness  to 
a  second  mortgage  deed,  it  would  give  a  priority  to  the  second 
mortgagee.  In  a  subsequent  case,  Lord  Hardwicke  is  reported 
to  have  said,  he  did  not  think  the  bare  attesting  a  deed  by  a  per- 
son as  a  witness  would  create  such  a  presumption  of  his  knowl- 
edge of  the  contents,  as  to  affect  him  with  any  fraud  ;  for  a 
witness  is  only  to  authenticate  it,  and  not  to  be  privy  to  the  con- 
tents. And  in  a  modern  case,  Lord  Thurlow  said :  —  "  I  do  not 
leave  this  as  a  case  which  I  should  determine  in  the  same  man- 
ner ;  for  a  witness,  in  practice,  is  not  privy  to  the  contents  of  the 
deed."  (c) 1 

(a)  Berisford  v.  Milward,  3  Atk.  49. 

(b)  Ibbotson  v.  Rhodes,  2  Vern.  554.     Pasley  o.  Freeman,  3  Term.  R.  51.     6  Ves.  186. 
Pearson  v.  Morgan,  1  Bro.  C.  C.  03.     2  Bro.  C.  C.  388. 

(c)  Moeatta  ».  Murgatroyd,  1  P.  Wins.  393.     Welford  v.  Beazeley,  1  Ves.  C.    Digby  r. 
Craggs,  2  Eden,  200.    Becket  v.  Cordley,  1  Bro.  C.  C.  353. 

1  The  ground  of  postponing  the  prior  title  in  such  cases  is,  that  the  party,  by  his 


680  Title  XV.     Mortgage.     Ch.  V.  s.  28—30 

28.  It  has  been  already  stated,  that  if  a  purchaser,  without 
notice  of  any  incumbrance,  obtains  an  assignment  of  a  prior 
statute,  judgment,  or  recognizance,  to  a  trustee  for  himself,  he 
may  by  that  means  protect  the  lands  purchased  from  any  mesne 
incumbrances.  Now,  as  mortgagees  are  considered  in  equity  as 
purchasers  pro  tanto,  the  same  doctrine  has  been  extended  to 
them ;  and  it  has  been  long  settled,  that  a  mortgagee  who  has 
advanced  his  money,  without  notice  of  any  prior  incumbrance, 
may,  by  getting  an  assignment  of  a  statute,  judgment,  or  recog- 
nizance, protect  himself  from  any  incumbrance  subsequent  to 
such  statute,  judgment,  or  recognizance,  though  prior  to  his  mort- 
gage ;  that  is,  he  will  be  allowed  to  tack 1  or  unite  his  mortgage 
to  such  old  security,  and  will  by  that  means  be  entitled  to  recover 
all  the  moneys  for  which  such  security  was  given,  together  with 
the  money  due  on  his  mortgage,  before  the  prior  mortgagees  are 

entitled  to  recover  any  thing,  (a)  f 
174  *         *  29.  The  nature  of  outstanding  terms  for  years,  and  the 

distinction  between  terms  in  gross  and  terms  attendant  on 

the  inheritance,  having  been  already  explained,  it  will  be 
175*     sufficient  *here  to  state,  that  where  a  second  or  third 

mortgagee,  who  advanced  his  money  without  notice  of 
any  prior  incumbrance,  can  obtain  an  assignment  of  an  old  term 
in  gross  to  a  trustee  for  himself,  he  will  be  thereby  enabled  to 
retain  possession  of  the  legal  estate,  till  he  is  repaid  all  the  money 
due  on  his  mortgage,  (b) 

30.  Although  a  term  has  been  assigned  upon  an  express  trust 
to  attend  the  inheritance ;  yet  if  a  subsequent  incumbrancer  gets 
an  assignment  of  it  to  a  trustee  for  himself,  it  will  protect  him 

(a)  Tit.  12,  c.  3,  §  34.     Tit.  14,  §  108.  (6)  Tit.  12,  c.  3. 

silence,  has  knowingly  participated  in  what  would  otherwise  be  a  fraud  on  the  second 
incumbrancer.  Thus,  where  S.  &  P.  were  joint  occupants  of  land,  the  title  to  which 
was  in  S.  alone ;  and  P.,  with  the  knowledge  and  assent  of  S.,  made  a  mortgage  of 
the  land,  which  S.  afterwards  treated  as  a  valid  and  subsisting  mortgage,  paying  part 
of  the  money  due ;  it  was  held,  in  a  suit  by  the  mortgagee  for  foreclosure  and  sale 
against  S.  &  P.,  that  S.  was  estopped  from  setting  up  his  title  against  the  innocent 
mortgagee.  Lee  v.  Porter,  5  Johns.  Ch.  268.  And  see  Brinckerhoff  v.  Lansing,  4 
Johns.  Ch.  65 ;  Green  v.  Price,  1  Munf.  449. 

1  As  to  the  doctrine  of  tacking,  see  ante,  ch.  3,  §  36,  55,  notes. 

[t  But  if  a  third  incumbrancer,  having  constructive  notice  of  the  second  mortgage, 
fails  to  keep  the  first  security  on  foot  for  his  protection,  he  is  not  entitled  to  stand  in 
the  place  of  the  first  mortgagee  against  the  second.  Parry  v.  Wright,  1  Sim.  &  Stu. 
369.     See  also  Toulmin  v.  Steere,  3  Mer.  210.] 


Title  XV.     Mortgage.     Ch,  V.  s.  30—32.  681 

against  all  mesne  incumbrances,  in  the  same  manner  as  if  it  had 
been  a  term  in  gross,  (a)1 

*  31.  The  doctrine,  that  a  term  which  has  been  assigned,     *184 
upon  an  express  trust   to    attend   the   inheritance,  may 
notwithstanding  be  severed  from  the  inheritance,  and  assigned  to 
protect  a  particular  incumbrance,  has  been  confirmed  by  a  court 

of  law. 

32.  R.  Jones,  being  seised  in  fee  of  several  estates,  demised 
the  same  in  1761  to  Aubrey  for  999  years,  by  way  of  mortgage. 
In  1768  this  term,  the  money  being  paid  off,  was  assigned  to 
Lockwood,  in  trust  for  Jones,  as  to  the  manor  of  Penmarke,  and 
to  attend  the  inheritance ;  and  as  to  the  other  lands,  in  trust  for 
Lockwood  and  Morris.  In  1767,  Jones  mortgaged  to 
Morgan,  *  and  in  1769  to  David ;  both  these  mortgages  *  185 
were  in  fee.  In  1769,  Jones  having  borrowed  £  10,000 
from  Sprigg,  assigned  the  term  to  Moreland,  in  trust  for  Sprigg ; 
and,  by  indentures  of  lease  and  release,  mortgaged  the  same  lands 
in  fee  to  Sprigg,  to  secure  the  X  10,000.  On  the  mortgage  to 
Sprigg,  all  proper  searches  were  made  for  incumbrances ;  he  had 
all  the  title  deeds  that  could  be  found  delivered  to  him,  at  the 
time  when  he  advanced  his  money,  except  the  demise  of  the 
term  for  999  years,  and  the  assignments  of  it,  which  were  kept 
in  the  hands  of  Lockwood,  on  account  only  of  containing  other 
premises  in  mortgage  to  Lockwood,  which  were  not  included  in 
the  mortgage  to  Sprigg,  nor  assigned  to  Moreland,  his  trustee ; 
but  counterparts  of  them  were  then  delivered  to  Sprigg.  Mor- 
gan and  David  were  in  possession,  by  ejectments  brought  on 
their  several  mortgages.  The  personal  representatives  of  More- 
land,  the  trustee  of  the  term  for  Sprigg,  brought  an  ejectment 
for  the  recovery  of  the  lands.  On  the  part  of  Morgan  and  David, 
it  was  contended  that  the  term  must  be  considered  as  attendant 
upon  the  inheritance ;  consequently,  at  the  times  of  the  respec- 
tive mortgages  to  them,  the  trustee  of  the  term  became  their 
trustee,  and  the  term  could  not  be  separated  from  the  inheritance, 
but  by  their  consent;  that  if,  previous  to  the  conveyance  to 
Sprigg  in  1769,  Morgan  and  David  had  brought  ejectments  upon 

(a)  Willoughby  v.  Willoughhy,  1  Term.  Rep.  763. 


'  Sec  ante,  tit.  12,  ch.  3.  ad  calc.     3  Wheat.  224,  n. 


682  Title  XV.     Mortgage.     Ch.  V.  s.  32—34. 

their  mortgages,  neither  Jones,  nor  Lockwood  his  trustee,  could 
have  set  up  this  term  as  a  bar  to  their  ejectment.  Then,  if  Jones 
himself  could  not  set  up  the  term,  it  was  absurd  to  say  that  those 
who  claimed  under  him  might;  for  they  could  not  claim  a 
greater  estate  than  he  had.  Then  Jones,  having  parted  with  the 
inheritance,  had  no  power  afterwards  to  make  any  appointment 
of  it  differently ;  his  power  was  gone,  though  it  were  collateral, 
by  the  conveyance  of  the  land. 

Mr.  Justice  Ashurst  said :  No  man  ought  to  be  so  absurd  as  to 
make  a  purchase,  without  looking  at  the  title  deeds ;  if  he  was, 
he  must  take  the  consequence  of  his  own  negligence.  If  the  first 
mortgagee  had  used  ordinary  precaution,  he  must  have  known 
that  this  term  was  then  outstanding ;  if  he  did  know  of  it,  and 
neglected  to  take  an  assignment  of  it,  that  was  enabling  the 
mortgagor  to  commit  a  fraud,  by  mortgaging  the  same  estate 
again.  By  this,  therefore,  he  became  particeps  criminis, 
186  *  and  must  *  suffer  for  the  consequences  of  the  fraud ;  for  the 
lessors  of  the  plaintiff  claiming  under  Sprigg,  who  had  got 
the  legal  estate,  must  be  preferred. 

Mr.  Justice  Buller  was  of  opinion  that  the  plaintiffs,  having 
the  title  deeds,  were  entitled  to  recover,  (a) 

33.  A  declaration  of  trust  of  a  term  for  years,  in  favor  of 
an  incumbrancer,  is  tantamount  to  an  actual  assignment  of  it  to  a 
trustee  for  him.  And  the  custody  of  the  title  deeds  respecting  a 
term  for  years,  with  a  declaration  of  trust  of  it,  in  favor  of  a 
second  incumbrancer,  is  equivalent  to  an  actual  assignment. 

34.  Henry  Sayer,  being  seised  in  fee  of  certain  estates,  subject 
to  an  outstanding  term  of  years  in  Rigby  and  Eyre,  by  inden- 
tures of  lease  and  release,  bearing  date  the  4th  and  5th  June, 
1732,  conveyed  them  to  Lady  Dysart  and  her  heirs,  for  securing 
the  payment  of  ,£1000,  with  interest;  and  covenanted  to  pro- 
duce the  deeds  respecting  the  terms  of  years.  Afterwards,  Rigby 
and  Eyre  assigned  the  term  to  Cunningham  and  Clayton,  in  trust 
for  Sayer,  his  heirs  and  assigns ;  and  then  Sayer,  by  indenture 
dated  19th  December,  1732,  conveyed  the  same  estates  to  Mrs. 
Nash,  under  whom  Lord  Verney  claimed,  by  way  of  mortgage, 
for  seeming  to  her  £3000  and  interest,  with  a  declaration  that 
Cunningham  and  Clayton  should  stand  possessed  of  the  term  in 

(a)  Goodtitle  v.  Morgan,  1  Term  R.  755.     Vide  ante,  §  9. 


Title  XV.     Mortgage.     Ch.  V.  s.  34—36.  683 

trust  for  her.  The  deeds  respecting  it  were  delivered  to  her,  and 
neither  she  nor  the  trustees  had  notice  of  the  mortgage  to  Lady 
Dysart.  Lady  Dysart  brought  an  ejectment ;  Lord  Verney  de- 
fended and  set  up  the  term,  with  a  declaration  of  trust  of  it,  in 
favor  of  Mrs.  Nash,  under  whom  he  claimed.  Upon  this,  Lady 
Dysart  brought  her  bill  in  equity.  The  question  was,  which 
should  be  preferred,  Lady  Dysart,  who  had  the  first  declaration  of 
the  trust  of  the  term,  or  Lord  Verney,  who  had  the  subsequent 
declaration  of  the  trust,  but  had  the  custody  of  the  deeds. 

Lord  Northington  held  that  a  declaration  of  trust,  in  favor  of 
an  incumbrancer,  was  tantamount  to  an  actual  assignment,  unless 
a  subsequent  incumbrancer  bond  fide,  and  without  notice,  pro- 
cured an  assignment.  And  that  the  custody  of  the  deeds  re- 
specting the  term,  with  a  declaration  of  the  trust  of  it,  in  favor 
of  a  second  incumbrancer,  was  equivalent  to  an  actual 
*  assignment ;  and  therefore  gave  him  an  advantage  over  *  187 
the  first  incumbrancer,  which  equity  would  not  take  from 
him.  (a)  f 

35.  If  the  first  incumbrance  only  extends  to  part  of  the  estate 
comprised  in  the  latter  mortgage,  it  will  only  protect  that  part ; 
but  if  the  first  incumbrance  extends  to  estates  not  comprised  in 
the  subsequent  mortgages,  the  puisne  mortgagee  shall  hold  all 
the  estates  till  he  is  satisfied.1 

36.  A  person  mortgaged  the  manor  and  rectory  of  D  to  A, 
then  mortgaged  the  rectory  to  B  without  notice  of  the  mortgage 
to  A;  afterwards  B  purchased  in  a  precedent  incumbrance  on 
both  the  manor  and  the  rectory. 

The  question  was,  when  B  had  received  all  the  money  due  on 
the  first  security,  whether  he  should  receive  any  more  profits  of 
the  manor,  or  only  keep  the  incumbrance  on  foot,  to  protect  the 
rectory.     This  was  argued   before  Lord  Keeper  Finch,  in  the 

(a)  Stanhope  r.  Verney,  1  Inst.  290  b,  n.  §  13.    2  Eden,  81. 

I  [Lord  Loughborough  has  observed,  6  Ves.  184,  that  this  doctrine  has  been  weakened 
by  some  determinations  at  law,  where  a  satisfied  term  has  not  been  allowed  to  be  set  up 
in  bar  to  a  plaintiff  in  ejectment.  But  the  law  on  that  point  has  been  since  altered. 
Vide  tit.  12,  c.  3. — Note  to  former  edition.] 

1  But  where  there  arc  successive  mortgages,  the  first  being  of  two  estates  and  the 
second  of  only  one  of  them,  the  first  mortgagee  will  be  obliged  to  exhaust  first  the 
estate  not  included  in  the  second  mortgage,  before  he  can  resort  to  the  other.  York 
&  Jersey  Steamboat  Co.  v.  Jersey  Co.,  I  Hop.  460. 


684  Title  XV.     Mortgage.     Ch.  V.  s.  36—38. 

presence  of  Wyld  and  Twisden.  The  two  Judges  held  that  B 
should  not  receive  the  profits  of  the  manor  after  the  first  incum- 
brance was  satisfied,  because  he  had  taken  the  rectory  only  for 
his  security  of  that  sum ;  and  it  would  be  unreasonable  to  give 
him  a  security  beyond  what  he  had  in  his  original  intention. 
But  the  Lord  Keeper  overruled  it ;  for  that  when  he  had  pur- 
chased the  precedent  incumbrances,  which  comprehended  both 
the  manor  and  the  rectory,  and  were  forfeited  at  law,  it  was  but 
reasonable  that  the  estate  should  not  be  taken  away  by  the  mesne 
incumbrancer  in  a  court  of  equity,  which  by  no  methods  could 
be  evicted  at  law,  unless  the  person  who  sought  relief  would  do 
equity,  and  pay  the  whole  money  due  on  both  securities,  (a) 

37.  It  has  been  long  established  as  a  rale  in  Chancery,  that 
where  a  mortgagee  buys  in  an  incumbrance,  to  protect  his  estate 
at  law,  on  compositions,  he  shall  be  allowed  the  full  money  due 
on  such  incumbrances ;  and  the  same  shall  not  be  redeemed  by 
the  mortgagor,  or  his  heir,  till  payment  of  all  the  money  due  on 
such  incumbrances ;  without  regard  to  the  beneficial  bargains 
and  compositions  made  by  such  purchaser,  (b) 

38.  A  distinction  has,  however,  been  made  in  cases  of 
188  *  this  *  kind  between  a  stranger  and  a  trustee  or  heir  at  law. 
For  wThere  a  trustee  or  heir  buys  in  an  incumbrance,  he 
shall  be  allowed  no  more  than  what  he  really  paid  for  it,  unless 
he  bought  it  to  protect  an  incumbrance  to  which  he  himself  was 
entitled.  But  where  a  stranger,  who  has  an  incumbrance  on  an 
estate,  buys  in  another  security,  to  protect  his  own,  he  shall  not 
only  hold  till  he  has  satisfied  his  own  debt,  and  has  reimbursed 
himself  the  money  paid  for  the  incumbrance  bought  in,  but  even 
till  he  has  received  all  the  money  and  arrears  of  interest  due  on 
the  security  so  bought  in.  (c) l 

(a)  Bovey  v.  Skipwith,  1  Cha.  Ca.  201.    1  Ab.  Eq.  323. 

(6)  Ascough  v.  Johuson,  2  Vera.  66.  (c)  Darcy  r.  Hall,  1  Vern.  49.     2  Atk.  54. 


1  The  principle  seems  to  be  this,  that  where  the  purchaser  of  a  debt  or  incum- 
brance sustains  a  fiduciary  relation  to  the  debtor  in  respect  of  the  same  debt  or  incum- 
brance, he  shall  be  presumed  to  have  made  the  purchase  pursuant  to  his  duty,  and  for 
the  benefit  of  the  debtor ;  and  therefore  is  allowed  only  what  he  actually  paid.  The 
same  principle  also  applies  in  all  cases  where  the  payment  of  the  debt  was  the  duty  of 
the  payer.  In  this  predicament  are  heirs,  sureties,  guardians,  executors,  administrators, 
agents,  and  all  other  persons  chargeable  as  trustees.  The  law  secures  the  faithfulness 
of  the  party,  by  removing  the  temptation  to  defraud.     See  1  Story,  Eq.  Jur.  §  316,  322, 


Title  XV.     Mortgage.     Ch..  V.  s.  39- 42.  685 

39.  In  the  case  of  judgments  or  statutes,  it  is  laid  down  by 
Sir  Joseph  Jekyll,  that  if  a  puisne  mortgagee  without  notice  buys 
in  a  prior  judgment  or  statute,  and  that  judgment  or  statute  is 
extended  upon  an  elegit,  at  a  value  much  under  the  real,  the 
mesne  mortgagee  shall  not  make  the  puisne  mortgagee,  who  has 
got  in  such  judgment,  account  otherwise,  or  for  more  than  the 
extended  value  ; .  nor  will  the  Court  of  Chancery  give  any  relief 
against  the  judgment  or  statute,  but  leave  the  mesne  mortgagee 
to  get  rid  of  them,  as  well  as  he  can,  at  law.  (a) 

40.  With  respect  to  the  time  when  a  second  or  third  mort- 
gagee may  purchase  in  a  prior  incumbrance,  it  has  been  long 
established  that  this  may  be  done  at  any  time  before  the  decree, 
even  pendente  lite ;  for  it  may  happen  that  the  second  or  third 
mortgagee  only  discovers  the  first  mortgage  by  the  proceedings 
in  the  suit,  (b) 

41.  But  where  a  puisne  incumbrancer  after  the  bill  brought, 
and  after  the  first  decree  made,  and  after  the  report,  got  an  as- 
signment of  an  old  judgment  and  mortgage,  hoping  thereby  to 
gain  a  preference  to  his  debt ;  the  Court  said :  The  assignment 
being  after  the  decree  made,  he  should  not  profit  by  it,  or  change 
the  order  of  payment ;  but  must  come  in  according  to  the  order 
of  time  of  his  own  incumbrance,  without  regard  to  the  old 
judgment  and  mortgage  which  he  got  in  after  the  decree  and 
report,  (c) 

42.  A  person  bought  in  an  old  judgment,  after  a  decree  had 
been  made  in  a  cause  in  which  he  had  been  a  party  with  other 
creditors,  and  the  Master  had  been  directed  to  inquire  into  the 
priority  of  their  demands ;  he  made  claim  before  the  Master  to 
have  it  tacked  to  his  mortgage,  thereby  to  gain  a  priority,  as  to 
which  the  Master  refused  to  make  any  report,  whereupon 

he  filed  *  his  bill :    one  question  was,  whether  he  could     *  189 
tack  the  incumbrance,  bought  in  after  the  decree,  to  his 
mortgage. 

(a)  2  P.  Wms.  494. 

(6)  Hawkins  v.  Taylor,  2  Vern.  29.    Turner  v.  Richmond,  2  Vern.  81. 

(c)  Bristol  v.  Hungerford,  2  Vern.  524. 


323;  2  Story,  Eq.  Jur.  §  1211,  1211,  a;  Phillips  v.  Vaughan,  1  Vern.  336;  Brathwaitc 
p.  Brathwaite,  Ibid.  335 :  Long  v.  Clopton,  Ibid.  464  ;  Williams  v.  Springfield,  Ibid. 
476  ;  Baldwyn  v.  Banister,  3  P.  Wms.  251,  note  (A) ;  Francis's  Max.  9—11  ;  Forbes  v. 
Boss,  2  Bro.  Ch.  Cas.  430,  note  16)  by  Perkins. 

vol.  i.  58 


686  Title    XV.     Mortgage.     Ch.   V.   s.  42— 44. 

Lord  Hardwicke,  (after  laying  down  the  general  doctrine  as 
already  stated,)  said,  "  that  if  a  puisne  incumbrancer  took  in  the 
first  incumbrance  pendente  lite,  still  he  should  have  the  same 
benefit ;  for  in  Marsh  v.  Lee  there  was  a  Us  pendens,  yet  was 
not  the  party  affected  by  it;  and  so,  I  take  it,  in  general  it 
would  be,  notwithstanding  a  lis  pendens ;  because  the  principle 
upon  which  all  these  cases  depend  is  this,  that  a  man's  having 
notice  of  a  second  incumbrance,  at  the  time  of  taking  in  the  first, 
does  not  hurt ;  it  is  the  very  occasion  that  shows  the  necessity 
of  it.  It  is  only  notice  at  the  time  of  taking  in  the  third,  that 
will  affect  him ;  for  then  no  act  that  he  can  do  will  help  him. 
Then  a  lis  pendens  is  nothing  but  notice :  an  actual  notice  is 
certainly  as  good  as  that  by  a  lis  pendens  ;  one  notice  is,  in  con- 
sideration of  this  Court,  as  strong  as  another.  Nay,  actual  notice 
is  stronger  than  that  implied  by  a  lis  pendens  ;  it  will  not,  there- 
fore, affect  him.  That  was  Marsh  v.  Lee,  and  the  other  cases 
which  I  agree  to  :  but  no  case  is  cited  wherein  a  puisne  incum- 
brancer, a  party  in  a  cause,  and  a  decree  made  in  that  cause 
for  satisfaction  of  incumbrancers,  according  to  their  respective 
priorities,  has  taken  in  a  prior,  to  tack  to  his  puisne  incumbrance, 
that  he  should  be  allowed  to  make  use  of  that  in  any  other  shape 
than  that  original  incumbrancer  would  be."  He  was  of  the  same 
opinion  as  Lord  Cowper  was  in  the  Earl  of  Bristol  v.  Hunger- 
ford,  in  general ;  and  did  think  it  would  be  most  mischievous  and 
pernicious  if  the  Court  should  allow  the  doctrine  of  tacking  to  be 

carried  to  that  extent,  (a) 
191  *         *  43.  In  the  following  case  it  was  determined  by  the 

Court  of  Chancery,  and  the  House  of  Lords,  that  a  third 
or  other  subsequent  mortgagee,  after  a  bill  filed  for  sale  of  the 
estate,  and  payment  of  all  the  mortgages,  to  which  the  first  mort- 
gagee had  put  in  an  answer,  and  submitted  that  the  incumbrances 
might  be  discharged  according  to  their  respective  priorities,  might 
buy  in  the  first  mortgage,  and  thereby  gain  a  priority  over  the 
second  and  other  mesne  mortgages,  (b) 

44.  John  Butler,  being  seised  in  fee  of  some  lands  in  Surrey, 
mortgaged  them  to  five  successive  persons,  and  delivered  the  title 
deeds  to  the  fifth  mortgagee.     Upon  the  death  of  the  mortgagor, 

(«)  Wortley  V.  Birkhead,  2  Ves.  571.    3  Atk.  809.     Tit.  12,  c.  3,  §  34,  n.     Ante,  §  54, 
(6)  Robinson  v.  Davison,  1  Bro.  C.  C.  63.     See  per  Lord  Eldon,  Mackretk  v.  Symmons. 
15  Ves.  335. 


Title  XV.     Mortgage.     Ch.  V.  s.  44—47.  687 

the  second  mortgagee  filed  a  bill  in  the  Court  of  Chancery  against 
all  the  other  mortgagees,  praying  that  they  might  set  forth  their 
interest  in  the  premises  ;  and  that  the  mortgaged  premises  might 
be  sold,  and  the  money  applied  towards  the  payment  of  all  the 
incumbrances,  in  their  just  order.  To  this  bill  all  the  other  mort- 
gagees put  in  their  answer  :  the  first  mortgagee  submitted  that 
all  the  incumbrances  might  be  paid  according  to  their  respective 
priorities  ;  and  the  last  mortgagee  insisted,  that  having  the  title 
deeds,  he  ought  to  be  paid  immediately.  After  all  these  answers 
had  been  put  in,  the  last  mortgagee  purchased  in  the  interest  of 
the  first  mortgagee,  and  riled  a  cross  bill,  stating  this  matter,  and 
that  by  means  of  the  assignment  from  the  first  mortgagee,  the 
legal  estate  in  the  premises  was  vested  in  him ;  therefore  he  was 
entitled  to  what  was  due  on  his  own  mortgage,  preferably  to  any 
of  the  intervening  mortgages. 

It  was  decreed  by  Lord  Keeper  Henley,  that  the  lands  should 
be  applied,  first  in  discharge  of  all  that  was  due  to  the  last 
*  mortgagee,  as  well  on  account  of  the  first  mortgage,     *192 
which  he  had  purchased,  as  on  account  of  his  own  mort- 
gage, (a) 

On    an    appeal    to    the    House   of   Peers,   the    decree   was 
affirmed. 

*45.  As  the  principal  point  upon  which  the  doctrine  *  194 
of  tacking  subsequent  to  prior  incumbrances- depends  is, 
whether  the  mortgagee  had  notice  of  the  prior  incumbrance  at 
the  time  when  he  advanced  his  money ;  it  will  be  necessary  to 
ascertain  ivhat  circumstances  constitute  notice ]  of  a  prior  incum- 
brance. (This  is  often  a  point  of  considerable  nicety;  resolving 
itself  sometimes  into  matter  of  fact,  and  sometimes  into  matter 
of  law.  Hence  notice  is  said  to  be  either  direct  and  actual,  or 
inferential  and  constructive.) 

46.  Direct  notice  is  an  actual  and  positive  knowledge  of  a 
prior  incumbrance,  regularly  and  formally  communicated  to  the 
mortgagee. 

47.  A  notice  given  to  the  counsel,  attorney,  solicitor,  or  agent 

(a)  Belchier  v.  Renforth,  5  Bro.  Pari.  Ca.  292.    1  Eden,  523. 


[ l  The  notice  must  be  direct  and  positive  or  implied  ;  a  notice  which  is  barely  suffi- 
cient to  put  a  party  on  inquiry,  is  not  enough.    Fort  v.  Burch,  6  Barb.  Sup.  Ct.  60.] 


688  Title  XV.     Mortgage.    Ch.  V.  s.  47—50. 

of  a  mortgagee,  is  a  sufficient  notice  to  such  mortgagee.  But  a 
notice  of  this  kind  must  be  confined  to  the  same  transaction ;  for 
notice  in  another  transaction  will  have  no  effect,  (a)  1 

48.  Where  all  the  securities  are  prepared  by  the  same  person, 
notice  to  that  person  will  operate  as  a  notice  to  all  the  parties 

concerned  in  the  transaction,  (b) 
195  *        *  49.  A.  judgment,  though  on  record,  is  not  in  itself  notice 

to  a  purchaser  or  mortgagee.  For  although  a  purchaser 
is,  at  law,  bound  to  take  notice  of  a  judgment;  yet,  in  equity, 
where  the  cognizee  of  a  judgment  claims  to  be  allowed  to  extend 
his  judgment  against  a  purchaser,  who  has  got  a  prior  term  or 
incumbrance,  he  must  prove  express  or  constructive  notice  of  the 
judgment,  otherwise  he  will  not  be  relieved,  (c) 

50.  A  memorial  of  a  conveyance,  duly  registered  in  the  manner 
required  by  the  register  acts,  is  not  of  itself  notice  to  a  subsequent 
incumbrancer,  (d)  2 

(a)  2  Vern.  574.     Gilb.  R.  8.     3  Atk.  294. 

(b)  Treat,  of  Eq.  B.  2,  c.  6,  §  4.    Le  Neve  v.  Le  Neve,  tit.  32,  c.  29. 

(c)  1  Cfaa.  Ca.  36.     2  Atk.  275. 

(d)  Tit.  32,  c.  29.     Amb.  678. 


1  Lawrence  v.  Tucker,  7  Greenl.  195;  Jackson  v.  Sharp,  9  Johns.  163;  Jackson  v. 
Van  Valkenburg,  8  Cowen,  260.  Notice  to  a  creditor  of  a  prior  conveyance  by  his 
debtor,  will  prevent  him  from  acquiring  a  title  by  attachment  of  the  land  as  the  prop- 
erty of  the  debtor.  Priest  v.  Rice,  1  Pick.  164;  Matthews  v.  Demerritt,  9  Shepl.  312. 
See  further,  post,  tit.  32,  ch.  29. 

2  In  the  United  States,  the  registration  of  any  instrument  of  title  which  the  law  re- 
quires to  be  registered,  if  the  instrument  be  duly  executed,  is  of  itself  notice  to  all 
subsequent  incumbrancers  or  grantees,  claiming  under  the  same  grantor.  See  post, 
Vol.  IV.  tit.  32,  ch.  29,  where  this  subject  is  further  treated.  [Moor  v.  Ware,  38  Maine, 
(3  Heath,)  496  ;  Pike  v.  Collins,  33  lb.  (3  Red.)  38.  See  also  Coster  v.  Bank  of  Georgia, 
24  Ala.  37;  DeVendal  v.  Malone,  25  lb.  272;  Center  v.  P.  &  M.  Bank,  22  lb.  743  ; 
Dean  v.  De  Lezardi,  24  Miss.  424;  Brown  v.  Kirkman,  1  Ohio  State  R.  116.]  Beside 
the  general  statutory  provisions  for  the  registration  of  all  deeds  of  conveyance,  there 
are  special  provisions,  in  several  of  the  United  States,  in  regard  to  mortgages.  In  some, 
the  provision  is  in  general  terms,  requiring  that  all  mortgages  be  registered ;  without 
which,  it  would  seem,  they  would  be  inoperative  as  mortgages,  whatever  rights  might 
exist  in  equity  between  the  parties.  In  New  Jersey,  an  unrecorded  mortgage,  though 
valid  between  the  parties,  is  of  no  force  against  subsequent  judgment  creditors,  or  bond 
fide  purchasers  and  incumbrancers  for  valuable  consideration,  unless  it  is  recorded  or 
lodged  with  the  clerk  or  register,  prior  to  the  entry  of  judgment  or  to  the  registry  of 
the  subsequent  deed.  Elmer's  Dig.  p.  87.  In  Delaware,  a  mortgage  not  recorded  within 
a  year  from  its  date,  is  of  no  force  against  subsequent  purchasers  and  incumbrancers 
bond  fide,  for  valuable  consideration  and  without  notice;  and  mortgages  become  liens, 
and  have  priority  inter  sese,  not  according  to  their  dates,  but  according  to  the  time  of 


Title  XV.     Mortgage.     Ch.  V.  s.  51 — 55.  689 

51.  A  person  is  not  bound  to  take  notice  of  an  act  of  bank- 
ruptcy;  for  it  may  be  committed  in  so  secret  a  manner,  as  not  to 
be  easily  known,  (a) 

52.  Sir  William  Grant  seems  to  have  doubted  whether  a  per- 
son purchasing  a  copyhold  estate,  must  be  presumed  to  have 
notice  of  everything  on  the  court  rolls  relating  to  it.  Sir  John 
Leach,  V.  C,  has  held  that  the  court  rolls  are  the  title  deeds  of 
copyholds,  and  that  a  purchaser  is  affected  with  notice  of  the  con- 
tents as  far  back  as  a  search  is  necessary  for  the  security  of  the 
title,  (b) 

53.  [A  private  act  of  parliament  is  not  notice  to  strangers,  but 
a  public  act  of  parliament  is  notice  to  all.  (c)  So  is  lis  pendens, 
where  not  collusive  ;  (d)  but  it  is  not  of  itself  notice  for  the  pur- 
pose of  postponing  a  registered  deed,  (e)  nor  to  prevent  a  third 
mortgagee  from  obtaining  the  benefit  of  the  legal  estate  from  the 
first  incumbrancer.  (/) 

54.  A  decree  of  a  court  of  equity  is  not  of  itself  notice,  (g)] 

55.  Lord  Chief  Baron  Eyre  has  defined  constructive  notice  to 
be  no  more  than  evidence  of  notice,  the  presumptions  of  which 
were  so  violent  that  the  Court  would  not  allow  even  of  its  being 

(a)  Hitchcock  v.  Sedgwick,  2  Vern.  157.     See  Sugd.  on  Vend.  719,  722,  6th  ed. 
(6)  Hansard  v.  Hardy,  18  Ves.  462.    Pearce  v.  Newlyn,  3  Madd.  186. 

(c)  2  Vez.  480.    2  Bos.  &  Pul.  578. 

(d)  2  Cha.  Ca.  116.    2  Sim.  433.    (Chaudron  v.  Magee,  8  Ala.  E.  570.) 

(e)  19  Ves.  439.  if)  1  Bro.  C.  C.  63.  (g)  Worsley  v.  Scarborough,  3  Atk.  392. 


their  registration.  Del.  Eev.  St.  1829,  p.  91.  In  South  Carolina  and  Kentucky,  the 
same  classes  of  purchasers,  including  creditors,  have  priority  over  mortgages  not  re- 
corded within  sixty  days  from  their  execution.  S.  Car.  Stat.  1843,  No.  2890,  §  1 ;  Ken- 
tucky, Eev.  St.  Vol.  I.  p.  448.  In  Georgia,  a  mortgage  not  recorded  within  three 
months  from  its  date  is  postponed,  in  favor  of  all  judgments  rendered  before  the  fore- 
closure of  the  mortgage,  and  all  subsequent  mortgages  duly  recorded.  LL.  Georgia, 
p.  420,  Hotchkiss's  Dig.  In  New  York,  every  conveyance  not  recorded,  is  void  against 
subsequent  purchasers  in  good  faith,  for  valuable  consideration,  whose  deeds  are  duly 
recorded.  LL.  N.  York,  Part  2,  ch.  3,  §  1,  Vol.  II.  p.  40,  3d  ed.  [As  between  parties 
a  mortgage  is  valid  without  registration.  Lcggett  v.  Bullock,  Busbee,  Law,  (N.  C.) 
283;  Fosdick  v.  Barr,  3  Ohio,  N.  S.  471.  And  is  valid  as  against  subsequent  purcha- 
sers with  notice.  Dearing  v.  Watkins,  1G  Ala.  20.  But  the  registration  of  a  mortgage, 
without  an  acknowledgment  or  proof,  according  to  the  statute,  is  a  nullity,  and  conveys 
no  notice.    Work  v.  Harper,  24  Miss.  517 ;  White  v.  Denman,  1  Ohio  State  R.  110. 

And  where  a  recorded  mortgage  is  discharged  by  a  person  not  the  mortgagee,  a  sub- 
sequent incumbrancer  is  bound  to  inquire  what  authority  he  had  to  discharge  it,  and  is 
chargeable  with  notice  of  such  facts,  as  by  proper  inquiry  he  could  have  ascertained. 
Swartwout  v.  Curtis,  1  Selden,  301.] 

58* 


690  Title  XV.     Mortgage.     Ch.  V.  s.  55—56. 

controverted.  And  Mr.  Fonblanque  has  observed  that  it  would 
be  extremely  difficult  to  extract  from  the  cases  any  general 
*  196  rule  *  on  this  subject.  It  seemed,  however,  to  be  held, 
that  every  man  shall  have  notice  of  the  instrument  under 
which  the  party  with  whom  he  contracts,  as  executor  or  trustee, 
derives  his  power.  It  seemed  also  agreed,  that  where  a  purchaser 
could  not  make  out  a  title,  but  by  a  deed  which  led  him  to 
another  fact,  he  should  be  presumed  to  have  notice  of  such  fact.1 
So  whatever  was  sufficient  to  put  a  party  on  inquiry,  was  good 
notice  in  equity,  (a) 

56.  It  is  laid  down  by  Lord  Eldon,  in  a  modern  case,  that  the 
possession  of  a  tenant  is  constructive  notice  to  a  purchaser  of  the 
actual  interest  he  may  have,  either  as  tenant,  or  under  an  agree- 
ment to  purchase  the  premises,  (b ) 

(a)  Plumb  v.  Fluitt,  ante,  §  13.    Treat,  of  Eq.  B.  3,  c.  3,  §  1.     Surman  r.  Barlow,  2  Eden, 
165. 

(b)  Daniels  v.  Davison,  16  Ves.  249.     17  Ves.  433. 

1  See  further,  as  to  notice, post,  tit.  32,  ch.  29,  §  20,  note,  where  this  rule  is  qualified, 
and  the  subject  is  treated  more  at  large. 


691 


CHAP.  VI. 

FORECLOSURE. 


Sect.  1.  Nature  of. 

5.  A  Foreclosure  binds  an  En- 
tail. 

7.  How  far  Infants  are  bound 
by  it. 


Sect.  11.  Married  Women  are  bound  by 
it. 

1 2.  Decrees  of  Foreclosure  some- 
times opened. 

14.  A  Sale  sometimes  decreed. 


Section  1.  As  the  courts  of  equity  allowed  persons  who  had 
mortgaged  their  lands  to  redeem  them,  long  after  the  time  of 
payment  was  passed,  and  the  condition  forfeited  at  law,  it  be- 
came also  necessary  to  establish  certain  rules  for  enabling  mort- 
gagees to  determine  and  destroy  the  right  of  redemption.  This 
may  be  done  after  the  day  of  payment  is  past,  by  the  mortgagee's 
filing  a  bill  of  foreclosure ;  that  is,  by  his  calling  on  the  mort- 
gagor, in  a  court  of  equity,  to  redeem  his  estate  presently  ;  or  in 
default  thereof,  to  be  forever  foreclosed,  and  barred  from  any 
right  of  redemption.1 

1  The  methods  of  foreclosing  mortgages  in  the  United  States  are  various;  but  subject 
to  some  diversities  in  the  details  of  proceedings,  not  within  the  scope  of  these  notes  to 
be  mentioned,  they  may  be  arranged  into  these  classes : — First,  by  bjM  in  Chancery, 
under  the  general  and  inherent  jurisdiction  of  Courts  of  Equity.  Here  an  interlocutory 
decree  is  passed,  for  the  payment  of  the  money  into  court,  by  a  day  limited,  either  by 
the  Court,  in  its  discretion,  or,  as  in  some  cases,  by  statute ;  on  default  of  which  the 
land  is  decreed  to  be  sold  by  the  Master,  and  the  money  being  brought  into  court,  the 
debt  is  paid,  with  the  costs,  and  the  balance,  if  any,  is  delivered  to  the  debtor.  See  4 
Kent,  Comm.  182—186;  Elmer's  Dig.  LL.  New  Jersey,  tit.  Chancery,  p.  62,  §  57  ;  New 
York,  Rev.  St.  pt.  3,  ch.  1,  tit.  2,  art.  6 ;  [Potter  v.  Rowland,  4  Selden,  (N.  Y.)  448  ;] 
LL.  Maryland,  Vol.  I.  p.  208,  Dorsey's  ed.;  Vermont,  Eev.  St.  1839,  ch.  24,  §  23 ;  South 
Carolina,  Stat,  at  Large,  Vol.  IV.  p.  642;  Michigan,  Rev.  St.  1837,  p.  376;  Indiana, 
Rev.  St.  1843,  ch.  29,  §  32,  33,  34 ;  Missouri,  Rev.  St.  1845,  ch.  122;  Alabama,  Toulm. 
Dig.  p.  487  ;  [Carradine  v.  O'Connor,  21  Ala.  523;]  Thompson's  Dig.  LL.  Florida,  p. 
380.  So,  in  Virginia,  1  Lomax,  Dig.  tit.  13,  ch.  6,  p.  397,  and  in  some  other  States. 
In  some  States,  the  Court  exercising  Chancery  powers,  may  decree  a  strict  foreclosure, 
whereby  the  title  becomes  absolute  in  the  mortgagee,  on  the  failure  of  the  mortgagor  to 
redeem  the  land  within  the  time  expressed  in  the  decree.  See  Dutton's  Dig.  LL.  Con- 
necticut, p.  515,  516;  Derby  Bank  v.  Landon,  3  Conn.  R.  62;  Swift  v.  Edson,  5  Conn. 


692  Title  XV.     Mortgage.     Ch.  VI.  s.  2. 

2.  A  mortgagee  brought  his  bill  against  the  mortgagor  to  com- 
pel him,  as  tenant  in  tail,  to  make  a  good  title,  by  suffering  a 

R.  531.  [Johnson  v.  Donnell,  el.  al.  15  Illinois  R.  100.]  In  Maryland,  if  the  mort- 
gagor is  an  infant,  or  non  compos  mentis,  the  Court  may  decree  either  a  sale  or  a  strict 
foreclosure,  in  whole  or  in  part,  at  its  discretion.     LL.  Maryland,  ubi  supra. 

In  Michigan  and  Indiana,  the  Court  of  Chancery  is  authorized  by  statute,  when  the 
proceeds  of  sale  are  insufficient,  to  render  judgment  for  the  balance  of  the  debt,  and 
issue  execution  therefor,  as  at  common  law.  In  Arkansas,  and,  as  it  seems,  in  Louisiana, 
the  Court  renders  judgment  for  the  whole  debt,  and  also  for  foreclosure  and  sale ;  and 
if  the  proceeds  of  sale  are  insufficient,  execution  issues  for  the  balance,  as  in  ordinary 
cases.  But  in  South  Carolina  and  Missouri,  this  may  be  done  only  by  the  court  of 
common  law,  on  petition,  under  the  statute,  Chancery  having  power  only  to  proceed 
according  to  the  usual  course  of  Chancery.  See  LL.  Michigan,  Missouri,  and  Indiana, 
ubi  supra;  LL.  South  Carolina,  Vol.  V.  p.  169,  170;  Arkansas,  Rev.  St.  1837,  ch.  101. 
See  also  Louisiana  Civ.  Code,  art.  3361.  In  Connecticut,  a  strict  foreclosure  is  held  a 
complete  extinguishment  of  the  mortgage  debt.  Kent  v.  Edson,  5  Conn.  R.  531.  But 
in  Massachusetts,  Maine,  New  Hampshire,  Maryland,  and  several  other  States,  it  is  held 
only  a  payment  pro  tanto ;  and  the  creditor  may  recover  the  balance  of  the  debt  in  a 
suit  at  law,  the  value  of  the  land,  when  foreclosed,  being  estimated  by  the  jury.  Amory 
v.  Fairbanks,  3  Mass.  562 ;  West  v.  Chamberlain,  8  Pick.  336  ;  Portland  Bank  v.  Fox, 
1  App.  99;  Hunt  v.  Stiles,  10  N.  Hamp.  466;  Doe  r.  McLosky,  1  Ala.  708;  Spencer 
v.  Harford,  4  Wend.  381  ;  Andrews  v.  Scotton,  2  Bland,  629;  Hatch  v.  White,  2  Gall. 
152;  Globe  Ins.  Co.  v.  Lansing,  5  Cowen,  380;  Lansing  v.  Goelet,  9  Cowen,  346 ; 
Omaly  v.  Swan,  3  Mason,  474  ;  Hedge  v.  Holmes,  10  Pick.  3S0,  381 ;  Hughes  v.  Ed- 
wards, 9  Wheat.  489.  And  see  1  Daniell's  Ch.  Pr.  331,  note  by  Perkins ;  Post,  §  12, 
note.  [If  a  mortgagee  foreclose  his  mortgage,  his  debt  becomes  by  that  act  extin- 
guished to  the  extent  of  the  value  of  the  land  at  the  time  of  the  foreclosure  ;  and  any 
other  collateral  security  which  he  may  hold  for  the  same  debt,  becomes  thereby  exoner- 
ated to  the  same  extent.  Smith  v.  Packard,  19  N.  H.  575.  If  lands  are  mortgaged  as 
one  entire  lot,  and  are  afterwards  subdivided  by  the  mortgagor  into  parcels,  the  mort- 
gagee, upon  foreclosure,  is  not  bound  to  advertise  and  sell  in  parcels,  but  may  sell  as 
one  undivided  lot,  by  the  description  in  the  mortgage.  Lamerson  v.  Marvin,  8  Barb. 
Sup.  Ct.  9.] 

Secondly.  BfPsaZe  under  a  power  for  that  purpose  in  the  mortgage  deed,  or  in  a  con- 
temporary instrument,  duly  authenticated  and  registered.  Such  a  power,  being  coupled 
with  an  interest,  is  irrevocable  and  inextinguishable  ;  and  a  sale  under  it  divests  the 
title  of  the  mortgagor  as  well  in  equity  as  at  law,  absolutely  and  forever.  In  Massachu- 
setts, and  some  other  States,  this  subject  remains  as  at  common  law  ;  but  in  others  it  is 
regulated  by  particular  statutes,  prescribing  the  manner  of  sale,  and  limiting  the  power 
of  the  creditor,  in  order  to  prevent  oppression  and  undue  advantage.  See  New  York, 
Rev.  St.  pt.  3,  ch.  8,  tit.  15,  3d  ed. ;  [Stanton  v.  Kline,  1  Kernan,  (N.  Y.)  196,  S.  C.  16 
Barb.  Sup.  Ct.  9;  Bunce  v.  Reed,  lb.  347;  Cohoes  Co.  v.  Goss,  13  lb.  137  ;  King  v. 
Duntz,  11  lb.  191 ;]  Michigan,  Rev.  St.  1837,  p.  499,  St.  1843,  No.  75  ;  Indiana,  Rev. 
St.  1843,  ch.  29,  §  51—53 ;  Mississippi,  Stat.  Feb.  21,  1840,  §  7. 

Thirdly.  By  entry  under  process  of  law,  sued  out  for  this  purpose  by  virtue  of  statutes 
regulating  such  proceedings.  This  may  be  done  in  Maine,  New  Hampshire,  Massachu- 
setts, Rhode  Island,  and  Vermont,  by  process  sued  out  at  any  time  after  breach.  [The 
assignee  of  two  mortgages  of  the  same  land,  made  by  the  same  mortgagor  at  different 
times,  to  different  mortgagees,  may  unite  them  in  one  action  of  foreclosure,  and  recover 


Title  XV.     Mortgage.     Ch.  VI.  s.  2.  693 

recovery.     Mr.  Justice  Wright,  sitting  at  the  Rolls,  said  he  did 
not  apprehend  that  the  Court  would  point  out  what  title  the 


thereon  a  conditional  judgment,  specifying  the  amount  due  on  each.  Peirce  v.  Balkam, 
2  Cush.  374.]  So,  in  Pennsylvania  and  Delaware;  except  that  in  these  States  process  is 
not  to  issue  until  twelve  months  after  breach.  [Wilson  v.  McCullough,  19  Penn.  (7 
Harris,)  77;  Larimer's  Appeal,  22  lb.  (10  Harris,)  41  :  Perry's  Appeal,  lb.  43.]  In 
Georgia,  the  course  is  by  petition,  and  a  rule  for  payment  of  the  money  in  six  months; 
after  which,  if  the  money  is  not  paid,  an  order  is  made  for  sale  of  the  land.  In  Florida, 
the  same  general  object  is  effected  by  a  provision  that  the  process  shall  be  served  four 
months  before  the  return  day ;  at  which  time,  if  no  good  cause  is  shown,  the  Court  is 
bound  to  render  judgment  fdr  the  debt  and  also  for  foreclosure.  In  the  New  England 
States  above  mentioned,  except  New  Hampshire,  a  time  is  limited  by  statute  or  in  the 
decree,  within  which  the  debtor  may  pay  the  money  and  prevent  the  issue  of  the  writ 
of  possession.  In  Maine,  Massachusetts,  and  Rhode  Island,  this  statute  period  is  two 
months. 

Fourthly.  By  entry  en  pais,  openly  and  peaceably  made,  and  without  process  of  law. 
This  method  may  be  pursued  in  Maine,  Massachusetts,  Neiu  Hampshire,  and  Rhode  Island. 
In  the  two  former  States,  the  entry  must  be  made  in  the  presence  of  two  witnesses,  and 
verified  by  their  affidavit,  duly  recorded  [within  thirty  days  of  the  entry,]  or  by  consent 
of  the  mortgagor,  indorsed  on  the  back  of  the  deed.  [If  the  mortgagor  has  conveyed 
the  right  of  redemption,  the  consent  of  such  grantee  must  be  obtained.  Chase  v.  Gates. 
33  Maine,  (3  Red.)  363.  Before  the  Rev.  Stat.,  if  a  mortgagee  entered  into  possession 
of  the  premises  under  a  deed  of  demise  and  lease  from  the  mortgagor  for  one  year,  and 
if  he  claim  to  hold  afterwards  to  foreclose,  he  must  notify  the  party  entitled  to  redeem. 
Ayres  v.  Waite,  10  Cush.  72.  An  entry  to  foreclose  by  a  mortgagee  on  one  of  two 
separate  tracts  of  land,  both  situated  in  the  same  county,  and  mortgaged  by  the  same 
deed,  on  the  same  condition,  is  an  entry  as  to  both.  Bennett  v.  Conant,  10  Cush.  163. 
A  mortgagor  who  signs  a  certificate  on  the  mortgage  of  a  lawful  entry  on  the  mort- 
gaged premises,  cannot  deny  the  fact  of  such  entry.  Ibid.  Nor  can  the  effect  of  such 
entry  be  avoided  by  proof  that  the  mortgagee  did  not  actually  go  on  the  land.  Oakham 
v.  Rutland,  4  Cush.  172.  See  also  Lawrence  v.  Pletcher,  10  Met.  344.  A  mortgagee 
who  has  duly  taken  possession  of  the  mortgaged  premises  for  the  purpose  of  foreclosure, 
need  not  continue  in  actual  occupation  and  use  of  the  premises  in  order  to  bar  the  right 
of  redemption  in  three  years  ;  the  mortgagor,  or  any  one  under  him,  not  being  in  occu- 
pation during  said  time.  Bennett  v.  Conant,  10  Cush.  163.  And  if  he  has  duly  taken 
actual  possession  thereof,  for  breach  of  condition,  for  the  purpose  of  foreclosure,  the 
mortgage  becomes  absolute  at  the  end  of  three  years  from  such  entry,  although  the 
mortgagor  afterwards  remains  in  the  occupation  of  the  premises,  in  the  same  manner 
as  before  for  a  longer  period  than  three  years.     Swift  v.  Mendell,  8  lb.  357. 

Where  a  mortgagee  quitclaimed  his  interest  in  a  portion  of  the  mortgaged  premises, 
and  subsequently  duly  entered,  with  the  knowledge  of  the  mortgagor,  on  the  mortgaged 
premises,  for  breach  of  condition  and  for  the  purposes  of  foreclosure,  but  the  certificate 
of  entry,  indorsed  on  the  deed  and  duly  recorded,  did  not  state  on  what  part  of  the 
premises  the  entry  was  made,  it  was  held  that  such  entry,  with  the  continued  possession 
of  the  grantee  of  the  part  conveyed  to  him  for  three  years  after  the  entry,  constituted  a 
perfect  foreclosure  of  the  mortgage  as  to  that  part  of  the  premises  held  by  the  latter. 
Raymond  v.  Raymond,  7  Cush.  605. 

In  Maine,  it  is  held  that  the  possession  must  be  actual,  and  is  not  proved  by  the  con- 
sent, in  writing,  of  the  mortgagor  that  the  mortgagee  may  enter,  and  that  possession  is 


694  Title  XV.     Mortgage.     Ch.  VI.  s.  2. 

mortgagor  should  make,  but  would  decree  him  to  make  such 
title  to  the  mortgagee  as  he  was  capable  of  doing ;  and,  therefore, 


thereby  given.  Chamberlain  v.  Gardiner,  38  Maine,  (3  Heath,)  548.  See  also  Pease 
v.  Benson,  28  Maine,  (15  Shep.)  336.] 

In  Rhode  Island,  also,  two  witnesses  are  requisite  ;  who  only  give  a  certificate  of  the 
fact  to  the  mortgagee,  to  be  recorded  in  like  manner.  In  New  Hampshire,  notice  of  the 
fact  of  entry  is  required  to  be  published  in  the  newspapers. 

The  possession  of  the  mortgagee,  in  either  of  these  cases  of  entry,  must  have  been 
continued  during  the  whole  period,  in  order  to  effect  a  strict  foreclosure.  If  it  is  restored 
to  the  mortgagor,  the  entry  is  waived.  Botham  v.  Mclntier,  19  Pick.  346.  [The  com- 
mencement of  a  suit  by  a  mortgagee  in  possession  to  foreclose  the  mortgage  by  action, 
is  not  an  abandonment  of  the  possession.  Page  v.  Robinson,  10  Cush.  99 ;  Merriam 
v.  Merriam,  6  Cush.  91.] 

Fifthly.  In  Maine,  if  the  mortgagee  elects  not  to  take  possession,  a  mortgage  may  be 
foreclosed  without  entry,  by  an  advertisement  in  the  newspapers,  or  by  a  notice  to  the 
mortgagor,  served  by  the  sheriff,  stating  his  title  and  claim  with  due  particularity,  and 
the  breach  of  the  condition,  by  reason  whereof  he  claims  to  foreclose  the  mortgage. 

And  wherever  a  foreclosure  may  be  made  by  entry,  in  the  preceding  cases,  if  the 
mortgagee  is  already  in  possession,  a  notice  that  he  thenceforth  holds  for  breach  of  the 
condition,  and  for  foreclosure,  is  equivalent  to  an  actual  entry  de  novo. 

After  an  entry  for  the  purpose  of  strict  foreclosure,  whether  made  under  process,  or 
en  pais,  and  after  advertisement  instead  of  entry,  as  last  mentioned,  the  mortgagor  is  in 
several  of  the  States  allowed  a  term  of  time,  fixed  by  statute,  within  which  he  may  still 
redeem  the  land  by  payment  of  the  mortgage  money  with  interest  and  legal  costs.  This 
period,  in  Maine,  Massachusetts,  and  Rhode  Island,  is  three  years.  [In  Maine,  when  the 
foreclosure  is  by  advertisement  in  the  newspapers,  the  three  years  begin  to  run  from 
the  date  of  the  last  publication.  Holbrook  v.  Thomas,  38  Maine,  (3  Heath,)  256.]  In 
New  Hampshire,  it  is  one  year.  In  most  other  States,  where  the  foreclosure  is  by  sale, 
under  a  judgment  or  decree,  the  sales  are  generally  made  as  in  the  case  of  lands  sold 
under  executions  at  common  law ;  and  are  redeemable  in  like  manner. 

The  foreclosure  of  a  mortgage  in  any  of  the  preceding  modes,  is  also  affected,  in  some 
of  the  States,  by  any  proceedings  at  law  for  recovery  of  the  debt.  In  Massachusetts,  a 
subsequent  judgment  at  law  for  the  balance  of  the  debt,  opens  the  foreclosure.  Rev. 
Stat.  1836,  ch.  107,  §  33.  In  some  other  States,  the  mortgagee,  if  he  has  proceeded  at 
law  for  the  debt,  can  have  no  decree  of  foreclosure  unless  the  execution  is  returned  not 
fully  satisfied.  In  Indiana,  it  must  also  be  certified  by  the  sheriff  that  the  debtor  has  no 
other  estate  except  the  mortgaged  land.    Ind.  Rev.  St.  1843,  ch.  29,  §  38. 

The  foregoing  provisions  will  be  found  in  Mass.  Rev.  Stat.  1836,  ch.  107;  Maine, 
Rev.  St.  1840,  ch.  125;  N.  Hamp.  Rev.  Stat.  1842,  ch.  131  ;  Vermont,  Rev.  St.  1839, 
ch.  24  ;  R.  Island,  Rev.  St.  1844,  p.  197—199  ;  N.  York,  Rev.  St.  pt.  3,  ch.  1,  tit.  2, 
art.  6  ;  lb.  pt.  3.  ch.  8,  tit.  15 ;  lb.  pt.  2,  ch.  3,  §  48;  lb.  ch.  1,  tit.  5,  §  5 ;  Elm.  Dig.  tit. 
Chancery,  §  57,  p.  62  ;  lb.  p.  85—87  ;  lb.  tit.  Conveyances,  p.  31—37,  40;  LL.  Penn- 
sylv.  by  Dunlop,  p.  23  ;  Del.  Rev.  St.  1829,  p.  91,  92,  206  ;  LL.  Mary],  by  Dorsey,  Vol.  I. 
p.  208;  LL.  S.  Car.  Vol.  IV.  p.  642,  Vol.  V.  p.  169,  170;  LL.  Georgia,  by  Hotchkiss, 
p.  420,  621,  622;  LL.  Florida,  by  Thompson,  p.  376,  377,  380;  Mich.  Rev.  St.  1837, 
p.  376,  378.  499,  501.  (But  see  further,  as  to  time  of  redemption,  Stat.  1839,  No.  115, 
§20;  Stat.  1840,  No.  91  ;  Stat.  1843,  No.  75,  §  8— 11.)  LL.  Ohio,  1841,  p.  266— 268; 
Walker's  Introd.  p.  302—305,  602  ;   Indiana,  Rev.  St.  1843,  ch.  29;   Illinois,  Rev.  St. 


Title  XV.     Mortgage.     Ch.  VI.  s.  2—5.  695 

directed  a  good  title  to  be  made  by  the  defendant  to  the  plaintiff; 
and  the  principal,  interest,  and  costs,  to  be  paid  in  six  months,  or 
the  defendant  to  stand  absolutely  foreclosed,  (a) 

3.  A  mortgagee  may  bring  an  ejectment  at  the  same  time  that 
he  has  a  bill  of  foreclosure  depending  in  Chancery.  But  special 
circumstances  may  arise  which  will  take  the  case  out  of  the  com- 
mon rule,  and  induce  the  Court  to  grant  an  injunction  to  stay 
the  proceedings  at  law.  (b) 

*  4.  In  Welsh  mortgages,  where  no  precise  time  is  fixed     *  198 
for  redemption,  there  can  be  no  foreclosure,  although  the 
mortgagor  may  redeem  at  any  time,  (c) 

5.  Where  an  equity  of  redemption  is  entailed,  a  decree  of  fore- 
closure will  bind  all  persons  claiming  under  such  entail. 

(a)  Sutton  v.  Stone,  2  Atk.  101.  (b)  Booth  v.  Booth,  2  Atk.  343.     7  Term  R.  185. 

(c)  1  Ves.  406. 


1839,  p.  393;  Stat.  Feb.  19,  1841,  p.  172  ;  Missouri,  Rev.  St.  1845,  ch.  122;  Missis- 
sippi, Rev.  St.  1840,  ch.  34  :  Alabama,  Toulm.  Dig.  p.  487  ;  Arkansas,  Rev.  St.  1837, 
ch.  101. 

An  entry,  in  order  to  foreclose  a  mortgage,  must  have  been  made  with  that  intent. 
If  made  on  any  other  ground,  opposed  to  the  mortgage  title,  it  cannot  afterwards  be 
justified  under  the  mortgage.     Merithew  v.  Sisson,  3  Kerr,  N.  B.  Rep.  373. 

It  is  further  to  be  observed,  that  the  entry  of  the  mortgagee,  whether  made  en  pais, 
or  asserted  bv  an  ejectment,  must  be  made  within  the  period  fixed  in  the  statutes  of 
limitation  respecting  entries  and  ejectments.  See  4  Kent,  Comm.  187,  1S8.  It  may 
also  be  barred,  even  in  equity  as  well  as  at  law,  by  such  lapse  of  time  or  other  circum- 
stances, as  raise  a  presumption  of  payment.  Ibid.  2  Story,  Eq.  Jur.  §  1028,  a,  b ; 
Angcll  on  Limitations,  ch.  6. 

There  can  be  no  foreclosure  of  part  only  of  the  premises  ;  but  if  the  mortgagor  has 
a  right  to  redeem'  any  part,  he  may  redeem  the  whole.  Spring  v.  Haines,  8  Shepl. 
126. 

In  taking  the  account,  in  a  bill  of  foreclosure,  the  course  is,  to  compute  the  interest 
and  the  charges  down  to  the  time  of  the  report.  Holabird  v.  Burr,  17  Conn.  R.  556. 
[In  New  Hampshire,  the  conduct  of  the  agent  of  the  mortgagee  having  been  un- 
conscientious and  oppressive  towards  the  mortgagor,  it  was  held  that  the  mortgagor  in 
his  bill  to  redeem  was  entitled  to  costs.  McNeil  v.  Call,  19  N.  H.  403.  Where  a  mort- 
gagee in  possession  for  foreclosure  neglects  to  render  an  account  of  rents  and  profits 
when  legally  demanded  so  to  do,  and  claims  a  greater  sum  than  is  due  upon  the  mort- 
gage, he  is  liable  for  costs  in  the  suit  to  redeem.  Sprague  v.  Graham,  38  Maine,  (3 
Heath,)  328.] 

Where  the  debt  is  payable  by  instalments,  a  bill  of  foreclosure  may  be  filed  on  de- 
fault of  the  first  payment.  Lansing  v.  Capron,  1  Johns.  Ch.  R.  617.  But  whether  the 
plaintiff  may  proceed  to  a  complete  foreclosure  before  another  default,  does  not  seem 
to  be  perfectly  agreed.  That  he  may,  see  Salmon  v.  Claggett,  3  Bland,  126  ;  Kimmell 
v.  Willard,  1  Doug.  Mich.  R.  217.  But  the  course  elsewhere  deemed  most  consonant 
with  the  rules  of  equity  is  to  require  the  defendant  to  pay  the  instalment  fallen  due, 
with  the  costs,  and  to  put  in  an  answer,  confessing  the  debt,  and  consenting  to  a  decree 


696  Title  XV.     Mortgage.     Ch.  VI.  s.  6. 

6.  A  person  having  made  a  mortgage,  afterwards  settled  the 
equity  of  redemption  on  himself  for  life,  remainder  to  his  issue  in 
tail,  remainder  to  his  brother  in  tail.  The  mortgagee  exhibited 
his  bill  against  the  mortgagor  to  foreclose,  without  making  his 
brother  a  party,  and  obtained  a  decree  for  that  purpose.  Upon 
the  death  of  the  mortgagor  without  issue,  his  brother  filed  his  bill 
to  redeem,  (a) 

The  cause  was  heard  before  Lord  Keeper  Finch,  assisted  by 
Lord  Chief  Justice  Hale,  Wyld,  and  Wyndham.  It  was  insisted 
for  the  defendant,  that  the  deed  under  which  the  plaintiff  claimed 
was  voluntary ;  that  although  a  voluntary  conveyance  would 
pass  an  equity  of  redemption,  yet,  in  this  case,  where  the  plaintiff 
claimed  an  equity  of  redemption  by  way  of  entail,  it  ought  not 
to  be  countenanced  in  equity ;  for  the  consequence  would  be,  to 
make  an  equity  of  redemption  perpetual. 

Lord  Chief  Justice  Hale  said,  that  "  by  the  growth  of  equity 
on  equity,  the  heart  of  the  common  law  is  eaten  out,  and  legal 
settlements  are  destroyed ;  and  was  of  opinion  there  was  no  color 
for  a  decree.  In  14  Richard  II.  the  parliament  would  not  admit 
of  redemption  ;  but  now  there  is  another  settled  course.  As  far 
as  the  line  is  given,  man  will  go ;  and  if  an  hundred  years  are 
o-iven,  man  will  go  so  far ;  and  we  know  not  whither  we  shall  go. 
An  equity  of  redemption  is  transferable  from  one  to  another  now, 
and  yet  at  common  law  if  he  that  had  the  equity  made  a  feoff- 
ment or  levied  a  fine,  he  had  extinguished  his  equity  at  law ;  and 
it  hath  gone  far  enough  already,  and  we  will  go  no  further  than 
precedents  in  the  matter  of  equity  of  redemption,  which  hath  too 
much  favor  already;  and  concluded  there  should  be  no  decree 
for  the  plaintiff :  and  a  decree  to  foreclose  a  tenant  in  tail  shall 

(a)  Roscarrick  v.  Barton,  1  Cha.  Ca.  217.    Beynoldson  v.  Perkins,  Amb.  564. 


of  foreclosure,  to  remain  subject  to  the  order  of  Court  upon  a  subsequent  default. 
Lansing  v.  Capron,  supra.  And  see  Caufman  v.  Sayre,  2  B.  Monr.  204 ;  Adams  v. 
Essex,!  Bibb,  150;  Day  v.  Cushman,  1  Scam.  475  ;  3  Pow.  on  Mortg.  903,  notes,  by 
Coventry  &  Rand.  In  New  York,  it  is  now  provided  by  statute,  that  upon  payment  of 
the  instalment  due,  with  costs,  the  bill  shall  be  dismissed.  2  Rev.  St.  p.  255,  §  211,  3d 
ed.    And  see  ace.  Massina  v.  Bartlett,  8  Port.  277 ;  Walker  v.  Hallett,  1  Ala.  R.  379, 

N.  S. 

[Where  the  condition  of  a  mortgage  was  that  the  principal  should  become  payable 
upon  the  failure  to  pay  an  instalment  of  interest  when  due,  a  neglect  to  pay  such  instal- 
ment when  due,  works  a  forfeiture  of  the  mortgage.  Ottowa  N.  R.  R.  Co.  v.  Murray, 
15  111.  336.1 


Title  XV.     Mortgage.    Ch.  VI.  s.  6—11.  697 

bind  his  issue  in  an  equity  of  redemption,  because  that  is  a  right 
only  set  up  in  a  court  of  equity,  and  so  may  be  here  extin- 
guished." The  Lord  Keeper  concurred  in  opinion,  and  the  bill 
was  dismissed,  (a) 

7.  A  decree  of  foreclosure  may  be  obtained  against  an  infant. 
But  in  all  such  decrees  a  day  is  given  to  the  infant  to  show 

*  cause  against  it,  within  six  months  after  he  attains  his    *  198 
age  of  twenty-one  years?     If  he  does  not  show  any  cause 
within  that  time,  the  decree  is  made  absolute  upon  him ;  but 
he  may  upon  motion  put  in  a  new  answer,  and  make  a  new 
defence,  (b) 

8.  In  a  case  of  this  kind,  though  the  infant  has  six  months 
after  he  comes  of  age  to  show  cause  against  the  decree,  yet  he 
will  not  be  allowed  to  open  the  account.  Nor  is  he  entitled  to 
redeem  the  mortgage  by  paying  what  is  reported  due ;  but  is  only 
permitted  to  show  an  error  in  the  decree,  (c) 

9.  Where  the  validity  of  a  mortgage  depended  on  a  disputable 
title, — namely,  whether  the  ancestor  of  the  infant  had  properly 
executed  a  power  from  which  his  right  to  mortgage  arose ;  the 
Court  would  not  decree  the  infant  to  be  foreclosed,  till  he  came 
of  age.  (d) 

10.  It  has  been  determined  in  a  modern  case,  that  where  a 
bill  prayed  a  foreclosure  against  an  infant,  and  the  mortgagees 
consented  to  a  sale,  an  inquiry  should  be  directed  whether  it 
would  be  for  the  benefit  of  the  infant.  Lord  Eldon  said  it  would 
be  too  much  to  let  an  infant  be  foreclosed,  when,  if  the  mort- 
gagee would  consent  to  a  sale,  a  surplus  might  be  got  for  the 
infant.     And  if  there  was  no  precedent,  he  would  make  one.  (e) 

11.  A  married  woman  is  bound  by  a  decree  of  foreclosure ;  and 
has  no  day  given  to  her  or  her  heirs  to  show  cause  against  the 
decree,  after  the  coverture  is  determined  ;  for,  having  by  her  own 
act  delegated  her  power  to  her  husband,  she  must  be  liable  to  all 
the  consequences  of  his  neglect.  (/) 

(«)  Roscarrick  v.  Barton,  1  Cha.  Ca.  217.  Reynoldson  v.  Perkins,  Amb.  564. 

(6)  3  P.  Wms.  401.  (c)  3  P.  "Wins.  352. 

(d)  Sale  v.  Freeland,  2  Vent.  351.  (e)  Mondey  v.  Mondey,  1  Ves.  &  B.  223. 

(f)  3  P.  Wms.  352. 

1  This  indulgence  is  granted  to  the  infant  only  in  cases  of  strict  foreclosure.  If  there 
is  a  decree  for  the  sale  of  the  mortgaged  premises,  the  infant  is  bound  by  the  sale. 
Mills  v.  Dennis,  3  Johns.  Ch.  K.  367. 

vol.  i.  59 


698  Title  XV.     Mortgage.     Ch.  VI.  s.  12. 

12.  The  Court  of  Chancery  has,  in  some  cases,  opened  decrees 
of  foreclosure,  and  allowed  the  mortgagor  further  time  to  redeem 
his  estate.  But  no  general  rule  can  be  laid  down  in  this  matter, 
as  every  case  must  depend  on  its  own  peculiar  circumstances.1 


1  In  one  case  the  decree  of  foreclosure  was  opened  after  sixteen  years,  the  equity  of 
redemption  being  worth  much  more  than  was  due  upon  the  account,  and  the  mortgagor 
having  been  distressed.  Burgh  v.  Langton,  15  Vin.  Abr.  476  ;  2  Eq.  Cas.  Abr.  609. 
In  other  cases,  relief  has  been  granted  on  fresh  evidence  adduced  on  behalf  of  the  mort- 
gagor.    Cocker  v.  Bevis,  1  Ch.  Cas.  61  ;  Ismood  v.  Claypool,  1  Ch.  Hep.  262. 

There  are  also  certain  acts  of  the  mortgagee,  which,  it  is  said,  will  of  themselves 
open  the  decree;  as,  if  the  decree  has  been  obtained  by  fraud  or  unfair  conduct  on  his 
part.  Loyd  v.  Mansell,  2  P.  Wms.  73 ;  Gore  v.  Stackpole,  1  Dow,  18;  Harvey  v.  Teb- 
butt,  1  Jac.  &  Walk.  197.  Whether  subsequently  proceeding  at  law  to  recover  the 
debt,  will  have  that  effect,  is  not  perfectly  clear.  In  England,  it  seems  that  it  will 
amount  to  a  waiver  of  the  foreclosure.  Dashwood  v.  Blythway,  1  Eq.  Cas.  Abr.  317, 
pi.  3  ;  3  Pow.  on  Mortg.  1002 — 1006,  by  Coventry,  note  (i),  and  cases  there  cited. 

But  in  the  United  States,  it  is  held  that  a  suit  at  law,  or  the  acceptance  of  part  of 
the  mortgage  money,  may  or  may  not  open  the  foreclosure,  according  as,  in  connection 
with  the  circumstances,  it  may  be  satisfactory  evidence  of  an  admission  on  the  part  of 
the  creditor,  that  he  still  regarded  the  land  as  a  mere  security  for  the  money.  Lawrence 
v.  Fletcher,  10  Mete.  344,  347.  If  he  accepts  the  whole  amount  of  the  debt,  it  is  con- 
clusive evidence  that  the  foreclosure  is  waived.  Batchelder  v.  Pobinson,  6  N.  Hamp. 
E.  12.  So,  if  a  second  entry  to  foreclose  is  made,  it  is  a  waiver  of  the  first.  Fay  v. 
Valentine,  5  Pick.  418.  And  see  Dexter  v.  Arnold,  1  Sumn.  109,  118.  So,  a  receipt  of 
part  of  the  money,  and  a  contemporaneous  lease  for  a  year  from  the  mortgagee  to  the 
mortgagor,  reserving  to  the  latter  "  all  the  right  in  equity  to  redeem  said  premises  which 
he  now  has,"  was  held  a  waiver  of  the  foreclosure.  Deming  v.  Comings,  11  N.  Hamp. 
K.  474,  483.  But  the  receipt  of  part  of  the  money,  alone,  and  without  other  circum- 
stances, has  not  that  effect.    Lawrence  v.  Fletcher,  supra ;  8  Met.  153,  S.  C. 

The  question  whether,  after  foreclosure,  the  creditor  may  proceed  at  law  upon  the 
bond  or  other  security  given  for  the  money,  has  been  much  discussed  both  in  England 
and  in  the  United  States.  A  distinction  has  been  taken  between  the  cases  where  the 
land  remained  in  the  hands  of  the  mortgagee,  and  where  it  had  been  sold  to  a  stranger. 
But  this  distinction  is  now  exploded  in  this  country ;  and  the  better  opinion  is,  that 
after  a  foreclosure,  whether  with  or  without  a  sale,  the  mortgagee  ma)-  sue  at  law  for 
the  balance  remaining  due  to  him,  the  land  being  deemed  payment  pro  tanto,  according 
to  its  value  as  found  by  the  jury.  See  4  Kent,  Comm.  182,  183.  In  Hatch  v.  White,  2 
Gall.  152,  this  point  was  elaborately  considered,  and  the  authorities  reviewed,  by  Mr. 
Justice  Story,  and  decided  in  favor  of  the  mortgagee.  See  also  3  Pow.  on  Mortg.  1002, 
note  (1 ),  by  Mr.  Eand  ;  Tooke  v.  Hartley,  2  Bro.  Ch.  Cas.  125,  andnotcs  by  Mr.Perkins ; 
Dunkley  v.  Van  Buren,  3  Johns.  Ch.  330  ;  Lansing  v.  Goelet,  9  Cowen,  346  ;  ante,  §  1, 
note  1,  and  cases  there  cited.  [Porter  v.  Pillsbury,  36  Maine,  (1  Heath,)  278  ;  Paris  v. 
Hulett,  26  Vt.  (3  Deane,)  308.] 

But  it  has  been  recently  held  in  England  that  if  the  mortgagee,  after  foreclosure, 
sells  the  estate  for  less  than  was  due  to  him,  he  cannot  recover  the  balance,  in  a  suit  at 
law ;  that  he  may  pursue  all  his  remedies,  both  at  law  and  in  equity,  at  the  same  time; 
and  that  if  he  obtains  part  payment  at  law,  he  may  go  on  with  his  foreclosure  bill  for 
the  residue ;  and  that  if  he  foreclose  first,  and  the  value  of  the  estate  is  less  than  is  due 


Title  XV.     Mortgage.     Ch.  VI.  s.  13—14.  699 

13.  [It  is  not  of  course  to  enlarge  the  time  for  foreclosing  the 
mortgage,  though  the  interest  be  paid  up  and  costs.  The  Court 
of  Chancery,  in  order  to  induce  it  to  enlarge  the  time,  must  have 
some  reason  assigned,  (though  it  does  not  require  a  very  strong 
one,)  why  the  mortgagee  did  not  pay  interest,  principal,  and 
costs,  at  the  time  appointed  by  the  report,  (a)] 

14.  Where  the  estate  mortgaged  is  reversionary,  and  in  many 
other  cases,  the  prayer  of  the  bill  is,  that  the  estate  may  be  sold, 
and  the  mortgagee  paid  his  principal,  interest,  and  costs;  in 
which  case,  if  there  be  a  surplus,  it  goes  to  the  mortgagor  (b)1 

(a)  Quarles  v.  Knight,  8  Pri.  630.'  Nanny  v.  Edwards,  4  Russ.  124.   (Ante,  ch.  3,  §  89,  note. ) 
(i)  Perry  v.  Barker,  13  Ves.  198. 

to  him,  he  may,  while  the  estate  remains  in  his  power,  sue  on  the  bond  or  covenant ;  but 
that  such  suit  will  open  the  foreclosure  and  admit  the  mortgagor  to  redeem.  Lockhart 
v.  Hardy,  9  Beav.  349  ;  10  Jur.  532. 

1  It  is  not  a  matter  of  course  to  order  the  whole  to  be  sold.  If  the  estate  can  be 
conveniently  divided,  and  the  value  is  greater  than  the  debt,  no  more  ought  to  be  sold 
than  will  pay  the  debt  and  costs.     Delabigarre  v.  Bush,  2  Johns.  490. 

All  sales  under  a  decree  of  foreclosure,  are  made  before  a  Master,~or  under  his  direc- 
tion. 2  Daniell's  Ch.  Pr.  1447,  1448,  by  Perkins.  But  in  New  York,  the  terms  of  the 
statute  are  deemed  to  require  the  master's  presence  at  the  sale.  Heyer  v.  Deaves,  2 
Johns.  Ch.  R,  154- 

If  the  mortgagor,  subsequent  to  the  mortgage,  has  sold  the  premises  in  lots,  to 
several  purchasers,  at  different  periods,  the  Court  will  direct  the  sale  of  the  lots  in  the 
order  in  which  they  were  sold,  beginning  with  the  last,  and  proceeding  in  the  order  of 
their  dates  to  the  first  conveyance.  Stoney  v.  Shultz,  1  Hill,  Ch.  R.  500  ;  dishing  v. 
Ayer,  12  Shepl.  383.    See  further,  on  the  subject  of  sales,  ante,  §  1,  note. 

[The  agent  of  a  mortgagee  agreed  that  if  the  mortgage  debt  should  be  paid  by  a 
certain  time  subsequent  to  its  becoming  due,  no  advantage  should  be  taken  of  a  fore- 
closure, and  a  tender  of  the  amount  was  made  in  accordance  with  the  agreement,  it 
was  held  that  the  forfeiture  was  waived  and  the  foreclosure  opened.  McNeil  v.  Call, 
19  N.  H.  403.] 


700 


TITLE  XVI. 

REMAINDER. 
BOOKS   OF   REFERENCE   UNDER   THIS    TITLE. 

Blackstone's  Commentaries.    BookLT.ch.il. 

Kent's  Commentaries.    Vol.  IV.  Lect.  59. 

Chief  Baron  Gilbert.  Treatise  on  Remainders  and  Reversions.  This  treatise 
is  contained  in  Mr.  Gwillim's  edition  of  Bacon's  Abridgment,  under  the 
title  of  Remainder.     See  his  Preface ;  and  4  Kent,  Comm.  235,  note. 

Charles  Fearne.  Essay  on  the  Learning  of  Contingent  Remainders,  &c. 
Butler's  edition,  with  notes  by  J.  W.  Smith,  1844. 

Wm.  F.  Cornish.     Essay  on  the  Doctrine  of  Remainders,  &c. 

Richard  Preston.     Tracts  on  Cross-Remainders,  &c. 
The  Same.     Essay  on  Estates.     Vol.  I.  p.  89 — 123. 

Flintoff.     On  Real  Property.     Vol.  II.  Book  I.  ch.  4,  §  2. 

CHAP.  I. 

NATURE   AND    DIFFERENT   KINDS   OF   REMAINDERS. 

CHAP.  II. 

EVENT   UPON   WHICH   A   CONTINGENT  REMAINDER   MAY   BE   LIMITED. 

CHAP.  III. 

ESTATE   NECESSARY   TO    SUPPORT   A   CONTINGENT   REMAINDER. 

CHAP.  IV. 

TIME   WHEN   A   CONTINGENT  REMAINDER  MUST   VEST. 

CHAP.  V. 

REMAINDERS   LIMITED   BY   WAY   OF  USE,  AND    CONTINGENT   USES. 

CHAP.  VI. 

HOW   CONTINGENT   REMAINDERS   AND    CONTINGENT   USES   MAY   BE 

DESTROYED. 

CHAP.  VII. 

TRUSTEES   TO   PRESERVE   CONTINGENT   REMAINDERS. 


Title  XVI.     Remainder.     Ch.  I.  s.  1—2. 


701 


CHAP.  VIII. 

OTHER  MATTERS   RELATING   TO   REMAINDERS. 


CHAP.  I. 


NATURE   AND   DIFFERENT   KINDS   OF  REMAINDERS. 


Sect.     2.  Remainders. 

8.  Vested  Remainders. 

10.  Contingent  Remainders. 

1 1 .  Different  kinds  of 

24.  Exceptions. 

25.  Limitation  to   A  for  ninety 

years,  if  he  shall  so  long 
live. 

32.  Rule  in  Shelley's  Case. 

33.  Limitation  to  the  right  Heirs 

of  the  Grantor. 

34.  Heir  sometimes  a  Descriptio 

Persons. 

35.  What  Kind  of  Uncertainty 

renders  a  Remainder  con- 
tingent. 
44.  An   intervening   Remainder 
may  be  'contingent,  and  a 
subsequent  one  vested. 


56. 


60. 


Sect.  49.  Two  contingent  Fees  may  be 
limited  in  the  Alternative. 
But  no  Estate  after  a  Re- 
mainder in  Fee  can  be 
vested. 
Unless  it  be  a  contingent 
determinable  Fee. 

62.  A  Power  of  Appointment  does 
not  suspend  Remainders. 

63.  Effect  of  a  Contingency  an- 
nexed to  a  preceding  Es- 
tate. 

75.  Adverbs  of  Time  only  denote 
the  Period  when  a  Re- 
mainder is  to  vest  in  In- 
terest. 

83.  A  Contingency  sometimes 
considered  as  a  Condition 
subsequent. 


Section  1.  We  now  come  to  consider  estates  with  regard  to 
the  time  of  their  enjoyment,  as  they  are  either  in  possession  or 
expectancy.  Estates  in  possession  are  those  where  the  tenant  is 
entitled  to  the  actual  pernancy  of  the  profits.  Estates  in  expec- 
tancy are  those  where  the  right  to  the  pernancy  of  the  profits  is 
postponed  to  some  future  period  ;  and  are  of  two  sorts,  namely, 
estates  in  remainder,  and  estates  in  reversion^ 1 

2.  An  estate  in  remainder  may  be  defined  to  be  "  an  estate 


t  [It  would  be  impossible  to  treat  of  this  title  without  transcribing  many  parts  of 
Mr.  Fearne's  excellent  work  on  Contingent  Kemainders.  The  reader  will,  however, 
observe  that  the  cases  are  in  general  more  fully  stated.    Note  by  Mr.  Cruise.] 

1  The  learning  of  remainders  is  treated  with  great  perspicuity  and  depth  of  research, 
in  the  admirable  Commentaries  of  Chancellor  Kent,  Vol.  IV.  Lect.  59,  to  which  the 
student,  desirous  of  mastering  this  abstruse  subject,  will  not  fail  to  direct  his  diligent 
attention. 

59* 


702  Title  XVI.     Remainder.     Cli.  I.  5.  2—5. 

limited  to  take  effect,  and  be  enjoyed,  after  another  estate  is 
determined."  }  As  if  a  man,  seised  of  lands  in  fee  simple,  grants 
them  to  A  for  twenty  years,  and  after  the  determination  of  that 
term,  to  B  and  his  heirs  forever.  Here  A  is  tenant  for  twenty 
years,  with  remainder  to  B  in  fee.  (a) 

3.  In  the  above  case,  an  estate  for  years  is  created  or  carved 
out  of  the  fee,  and  given  to  A,  and  then  the  residue  or  remainder 
of  the  estate  is  given  to  B.  Both  these  estates  are,  however,  but 
one  estate ;  the  present  term  for  years,  and  the  remainder  after, 
when  added  together,  being  equal  only  to  one  estate  in  fee. 
They  are  different  parts,  constituting  one  whole,  being  carved 
out  of  one  and  the  same  inheritance  ;  they  are  both  created  and 
subsist  at  the  same  time,  the  one  in  possession,  and  the  other 
in  expectancy,  (b) 

4.  Lord  Coke  has  denned  a  remainder  to  be — "  A  remnant  of 
an  estate  in  lands  or  tenements  expectant  on  a  particular  estate 

created  together  with  the  same,  at  one  time."  From 
203  *     which  it  *  follows,  that  wherever  the  whole  fee  is  first 

limited,  there  can  be  no  remainder  in  the  strict  sense  of 
that  word;  for  the  whole  being  first  disposed  of,  no  remnant 
exists  to  limit  over.2  Thus,  if  lands  are  limited  to  a  person  and 
his  heirs,  and  if  he  dies  without  heirs,  that  they  shall  remain  over 
to  another,  the  last  limitation  is  void.3  (c) 

5.  A  person  devised  lands  in  London  to  the  prior  and  con- 
vent of  St.  Bartholomew,  and  their  successors,  so  as  they  paid 

(a)  (2  Bl.  Coram.  163.    2  Flintoff  on  Real  Property,  p.  255.) 

(b)  (Wymple  v.  Fonda,  2  Johns.  288.)       (c)  1  Inst.  143,  a.    1  Ab.  Eq.  186. 

1  Chancellor  Kent  has  defined  a  remainder  to  be — "  A  remnant  of  an  estate  in  land, 
depending  on  a  particular  prior  estate,  created  at  the  same  time,  and  by  the  same  in- 
strument, and  limited  to  arise  immediately  on  the  determination  of  that  estate,  and  not 
in  abridgment  of  it."  4  Kent,  Coram.  197.  In  the  statutes  of  New  York,  a  remainder 
is  denned  as  "  an  estate  limited  to  commence  in  possession  at  a  future  day,  on  the 
determination,  by  lapse  of  time  or  otherwise,  of  a  precedent  estate,  created  at  the  same 
time."    Rev.  St.  Vol.  II.  p.  9,  §  10,  11,  3d  ed. 

2  In  Neiv  York,  a  fee  may  be  limited  upon  a  fee,  upon  a  contingency  which,  if  it 
should  occur,  must  happen  within  two  lives  in  being  at  the  creation  of  the  estate.  Rev. 
Stat.  Vol.  II.  p.  10,  11,  §  15—24.     So,  in  Indiana,  Rev.  St.  1843,  ch.  28,  §  59. 

3  Wherever  the  first  grantee  has  the  absolute  right  of  disposal,  a  limitation  over  is 
void,  being  inconsistent  with  such  right.  As,  if  there] be  a  devise  to  A  and  his  heirs 
forever,  a  devise  over  of  what  he  should  leave,  if  he  should  die  without  heirs,  is  void. 
Ide  v.  Ide,  5  Mass.  500 ;  Jackson  v.  Delancy,  13  Johns.  537  ;  Riddick  v.  Cahoon, 
4  Rand.  547  ;  Burbank  v.  Whitney,  24  Pick.  146  ;  Cox  v.  Marks,  5  Ired.  361. 


Title  XVI.     Remainder.     Ch.  I.  s.  5—8.  703 

annually  sixteen  marks  to  the  dean  and  chapter  of  St.  Paul ;  if 
they  should  fail  of  payment,  that  their  estate  should  cease,  and 
the  dean  and  chapter  should  have  it.  Held,  that  the  limitation 
over  was  void  as  a  remainder,  because,  the  first  devise,  carrying 
a  fee,  nothing  remained  to  be  disposed  of.  (a)  J 

6.  In  the  case  of  a  qualified  or  base  fee,  no  remainder  can  be 
limited  upon  it.  Thus,  Lord  Coke  says,  if  lands  be  given  to  A 
and  his  heirs,  so  long  as  B  has  heirs  of  his  body,  remainder  over 
in  fee,. the  remainder  is  void.  But  since  the  Statute  De  Donis,  a 
remainder  may  be  limited  after  an  estate  tail,  (b) 

7.  Lord  Chief  Baron  Gilbert  says,  the  word  remainder  is  no 
term  of  art ;  nor  is  it  necessary  to  create  a  remainder,  for  any 
other  word  sufficient  to  show  the  intent  of  the  party  will  create 
it ;  because  such  estates  take  their  denomination  of  remainders 
more  from  the  nature  and  manner  of  their  existence,  after  they 
are  limited,  than  from  any  previous  quality  inherent  in  the  word 
remainder,  to  make  them  such.  Therefore,  if  a  man  gives  lands 
to  A  for  life,  and  that  after  his  death  the  land  shall  revert  and 
descend  to  B  for  life,  &c,  this  is  a  good  remainder,  (c) 

8.  Remainders  are  either  vested  or  contingent.^  Vested  remain- 
ders, or  remainders  executed,  are  those  by  which  a  present  in- 
terest passes  to  the  party,  though  to  be  enjoyed  in  future,  and 
by  which  the  estate  is  invariably  fixed  to  remain  to  a  determinate 
person,  after  the  particular  estate  is  spent.2     As  if  A  be  tenant 

(a)  Dyer,  33  a. 

(b)  1  Inst.  18,  a.  10  Eep.  97,  b.  Vaugh.  269,  contra.  Plowd.  235.  (Wilkes  v.  Lion, 
2  Cowen,  333.) 

(c)  Bac.  Ab.  8vo.    Tit.  Eem.  B. 


t  [An  estate  is  vested  when  there  is  an  immediate  fixed  right  of  present  or  future 
enjoyment.  An  estate  is  vested  in  possession,  when  there  exists  a  right  of  present 
enjoyment.  An  estate  is  vested  in  interest  when  there  is  a  present  fixed  right  of 
future  enjoyment.  An  estate  is  contingent,  when  a  right  of  enjoyment  is  to  accrue 
on  an  event  which  is  dubious  and  uncertain.    Fearne's  Introduction.] 

1  The  estate  devised  in  this  case  was  a  fee  simple,  vested  in  the  prior  and  convent ; 
and  the  payment,  required  to  be  made  to  the  dean  and  chapter,  was  not  deemed  a  con- 
dition, but  a  conditional  limitation  in  remainder,  which  being  limited  after  a  fee  simple 
already  vested,  was  void.  Higgins  v.  Dowler,  1  P.  Wms.  98;  1  Salk.  156,  S.  C. ; 
explained  and  approved  in  Stanley  v.  Leigh,  2  P.  Wms.  686,  694.  And  see  Massen- 
burgh  v.  Ash,  1  Vern.  234. 

2  It  is  a  rule  of  law,  that  a  remainder  is  not  to  be  considered  as  contingent,  when 
it  may  be  construed,  consistently  with  the  grantor's  or  testator's  intention,  to  be 
vested;   and  this,  for  the  sake  of  greater  certainty  in   titles;  because  contingent 


704  Title  XVI.     Remainder.     Ck.  I.  s.  8—11. 

for  years,  remainder  to  B  in  fee,  hereby  B's  remainder  is  vested, 
which  nothing  can  defeat  or  set  aside.     So,  where  an  estate  is 

conveyed  to  A  for  life,  remainder  to  B  in  tail,  remainder 
204  *    to  C  *  in  tail,  with  twenty  other  remainders  over  in  tail 

to  persons  in  esse,  all  these  remainders  are  vested. 

9.  The  person  entitled  to  a  vested  remainder  has  an  immediate 
fixed  right  of  future  enjoyment ;  that  is,  an  estate  in  prcesenti, 
though  it  is  only  to  take  effect  in  possession  and  pernancy  of  the 
profits  at  a  future  period ;  and  such  an  estate  may  be  transferred, 
aliened,  and  charged,  much  in  the  same  manner  as  an  estate  in 
possession. 

10.  A  remainder  is  contingent  when  it  is  limited  to  take  effect 
on  an  event  or  condition  which  may  never  happen  or  be  performed, 
or  which  may  not  happen  or  be  performed  till  after  the  determina- 
tion of  the  preceding  particular  estate,  in  which  case,  as  will  be 
shown  hereafter,  such  remainder  never  can  take  effect. 

11.  There  are,  according  to  Mr.  Fearne,  four  kinds  of  contin- 
gent remainders : ]  —  First,  Where  the  remainder  depends  entirely 


remainders,  being  in  the  power  of  the  particular  tenant,  may  be  destroyed.     See 

4  Kent,  Comm.  203  ;  Doe  v.  Perryn,  3  T.  E.  494,  per  Buller,  J. ;  Dingley  v.  Dingley, 

5  Mass.  537  ;  Doe  v.  Prigg,  8  B.  &  C  231,  per  Bayley,  J.;  Driver  v.  Frank,  6  Price, 
41,  per  Burrough,  J. ;  Olney  v.  Hull,  21  Pick.  313. 

A  testator  devised  to  his  sons,  for  a  term  of  years,  the  improvement  and  income 
of  his  farm,  and  after  the  end  of  the  term,  to  his  grandchildren,  the  sons  and 
daughters  of  his  sons,  in  fee.  It  was  held  a  vested  remainder  in  the  grandchildren 
living  at  the  testator's  death,  subject  to  open  and  let  in  all  born  afterwards.  Bal- 
lard v.  Ballard,  18  Pick.  41.  And  see  Wager  v.  Wager,  1  S.  &  E.  374 ;  Doe  v.  Pro- 
voost,  4  Johns.  61  ;  [Williamson  v.  Berry,  8  How.  U.  S.  495 ;  Yeaton  v.  Eoberts,  8  Fos- 
ter, (N.  H.)  459 ;  Wight  v.  Baury,  7  Cush.  105  ;  McGregor  v.  Toomer,  2  Strobh.  Eq.  51.] 

1  The  whole  doctrine  of  remainders  is  discussed  by  Sir  Wm.  Blackstone,  in  his 
Commentaries,  B.  2,  ch.  11,  with  a  degree  of  ability,  clearness,  and  philosophical 
elegance,  unequalled  by  any  writer  on  the  law  of  real  property.  The  study  of  the 
entire  chapter  is  earnestly  commended  to  the  student,  as  the  easiest  method  of  mas- 
tering this  abstruse  title  of  the  law.  His  statement  of  the  doctrine  of  contingent 
remainders  is  so  far  preferable  to  that  of  Mr.  Eearne,  and  at  the  same  time  is  so 
perspicuously  compact,  that  its  insertion  here,  by  way  of  contrast,  cannot  but  be 
acceptable. 

"Contingent  or  executory  remainders,"  he  observes,  ("whereby  no  present  inter- 
est passes,)  are  where  the  estate  in  remainder  is  limited  to  take  effect,  either  to  a 
dubious  and  uncertain  person,  or  upon  a  dubious  and  uncertain  event;  so  that  the 
particular  estate  may  chance  to  be  determined,  and  the  remainder  never  take  effect. 

"First,  they  may.  be  limited  to  a  dubious  and  uncertain  person.  As  if  A  be 
tenant  for  life,  with  remainder  to  B's  eldest  son  (then  unborn)  in  tail;  this  is  a 
contingent  remainder,  for  it  is  uncertain  whether  B  will  have  a  son  or  no  ;  but  the 


Title  XVI.     Remainder.     Ch.  I.  5.  11.  705 

on  a  contingent  determination  of  the  preceding  estate  itself.  As, 
if  A  makes  a  feoffment  to  the  use  of  B  till  C  returns  from  Rome, 

instant  that  a  son  is  born,  the  remainder  is  no  longer  contingent,  but  vested. 
Though,  if  A  had  died  before  the  contingency  happened,  that  is,  before  B's  son 
was  born,  the  remainder  would  have  been  absolutely  gone ;  for  the  particular  estate 
was  determined  before  the  remainder  could  vest.  Nay,  by  the  strict  rule  of  law,  if 
A  were  tenant  for  life,  remainder  to  his  eldest  son  in  tail,  and  A  died  without  issue 
born,  but  leaving  his  wife  encienti,  or  big  with  child,  and  after  his  death  a  posthumous 
son  was  born,  this  son  could  not  take  the  land  by  virtue  of  this  remainder;  for  the 
particular  estate  determined  before  there  was  any  person  in  esse,  in  whom  the  remainder 
could  vest.  But,  to  remedy  this  hardship,  it  is  enacted  by  statute  10  &  11  Will.  3,  c.  16, 
that  posthumous  children  shall  be  capable  of  taking  in  remainder,  in  the  same  manner 
as  if  they  had  been  born  in  their  father's  lifetime  ;  that  is,  the  remainder  is  allowed  to 
vest  in  them,  while  yet  in  their  mother's  womb. 

"  This  species  of  contingent  remainders  to  a  person  not  in  being,  must  however, 
be  limited  to  some  one,  that  may,  by  common  possibility,  or  potentia  propinqua,  be 
in  esse  at  or  before  the  particular  estate  determines.  As  if  an  estate  be  made  to  A 
for  life,  remainder  to  the  heirs  of  B ;  now,  if  A  dies  before  B,  the  remainder  is  at 
an  end ;  for  during  B's  life  he  has  no  heir,  nemo  est  hceres  viventis ;  but  if  B  dies 
first,  the  remainder  then  immediately  vests  in  his  heir,  who  will  be  entitled  to  the 
land  on  the  death  of  A.  This  is  a  good  contingent  remainder,  for  the  possibility  of 
B's  dying  before  A  is  potentia  propinqua,  and  therefore  allowed  in  law.  But  a  remain- 
der to  the  right  heirs  of  B,  (if  there  be  no  such  person  as  B  in  esse,)  is  void.  For  here 
there  must  two  contingencies  happen  :  first,  that  such  a  person  as  B  shall  be  born  ;  and, 
secondly,  that  he  shall  also  die  during  the  continuance  of  the  particular  estate ;  which 
make  it  potentia  remotissima,  a  most  improbable  possibility.  A  remainder  to  a  man's 
eldest  son,  who  hath  none  (we  have  seen)  is  good,  for  by  common  possibility  he  may 
have  one  ;  but  if  it  be  limited  in  particular  to  his  son  John,  or  Richard,  it  is  bad,  if  he 
have  no  son  of  that  name ;  for  it  is  too  remote  a  possibility,  that  he  should  not  only 
have  a  son,  but  a  son  of  a  particular  name.  A  limitation  of  a  remainder  to  a  bastard 
before  it  is  born,  is  not  good :  for  though  the  law  allows  the  possibility  of  having  bas- 
tards, it  presumes  it  to  be  a  very  remote  and  improbable  contingency.  Thus  may  a 
remainder  be  contingent,  on  account  of  the  uncertainty  of  the  person  who  is  to  take  it. 

"A  remainder  may  also  be  contingent,  where  the  person  to  whom  it  is  limited  is 
fixed  and  certain,  but  the  event  upon  which  it  is  to  take  effect,  is  vague  and  uncertain. 
As,  where  land  is  given  to  A  for  life,  and  in  case  B  survives  him,  then  with  remainder 
to  B  in  fee:  here  B  is  a  certain  person,  the  remainder  to  him  is  a  contingent  remain- 
der, depending  upon  a  dubious  event,  the  uncertainty  of  his  surviving  A.  During  the 
joint  lives  of  A  and  B  it  is  contingent ;  and  if  B  dies  first,  it  never  can  vest  in  his  heirs, 
but  is  forever  gone  ;  but  if  A  dies  first,  the  remainder  to  B  becomes  vested. 

"  Contingent  remainders  of  either  kind,  if  they  amount  to  a  freehold,  cannot  be  lim- 
ited on  an  estate  for  years,  or  any  other  particular  estate,  less  than  a  freehold.  Thus  if 
land  be  granted  to  A  for  ten  years,  with  remainder  in  fee  to  the  right  heirs  of  B,  this 
remainder  is  void  ;  but  if  granted  to  A  for  life,  with  a  like  remainder,  it  is  good.  For> 
unless  the  freehold  passes  out  of  the  grantor  at  the  time  when  the  remainder  is  created, 
such  freehold  remainder  is  void  ;  it  cannot  pass  out  of  him,  without  vesting  somewhere; 
and  in  the  case  of  a  contingent  remainder  it  must  vest  in  the  particular  tenant,  else 
it  can  vest  nowhere ;  unless,  therefore,  the  estate  of  such  particular  tenant  be  of  a 
freehold  nature,  the  freehold  cannot  vest  in  him,  and  consequently  the  remainder  is 


706  Title  XVI.     Remainder.     Ch.  I.  s.  11—15. 

and  after  such  return  of  C,  then  to  remain  over  in  fee  ;  here  the 
particular  estate  is  limited  to  determine  on  the  return  of  C,  and 
only  on  that  determination  of  it  is  the  remainder  to  take  effect ; 
but  that  is  an  event  which  possibly  may  never  happen  ;  therefore 
the  remainder,  which  depends  entirely  upon  the  determination  of 
the  preceding  estate  by  it,  is  contingent,  (a) 

12.  A  fine  was  levied  to  the  use  of  A  and  the  heirs  male  of 
his  body,  until  the  said  A  should  do  such  a  thing,  and  after  such 
a  thing  done  by  the  said  A,  to  the  use  of  B  in  tail.  A  died 
without  issue,  and  without  performing  the  condition.  It  was 
adjudged  that  the  remainder  was  contingent,  (b) 

13.  The  second  kind  of  contingent  remainder  is  where  some 
uncertain  event,  unconnected  with  and  collateral  to  the  determi- 
nation of  the  preceding  estate,  is  by  the  nature  of  the  limitation 
to  precede  the  remainder. 

14.  Thus,  Lord  Coke  says,  if  a  lease  for  life  be  made  to  A,  B, 
and  C,  and  if  B  survive  C,  then  the  remainder  to  B  and  his 
heirs.  Here  the  want  of  B's  surviving  C  does  not  affect  the 
determination  of  the  particular  estate  ;  nevertheless  it  must  pre- 
cede and  give  effect  to  B's  remainder ;  but  as  such  an  event  is 
dubious,  the  remainder  is  contingent,  (c) 

15.  Thomas  Lane  devised  his  messuage,  &c,  unto  and  to  the 
use  of  his  brother  George  Lane  and  his  assigns,  for  and 

205  *  during  *the  term  of  his  natural  life,  without  impeachment 
of  waste ;  and  from  and  after  his  death,  then  to  the  use 
of  Catherine  Benger,  her  heirs  and  assigns  forever,  in  case  she, 
the  said  Catherine  Benger,  should  survive  and  outlive  his  said 
brother,  but  not  otherwise  ;  and  in  case  the  said  Catherine  Ben- 
ger should  die  in  the  lifetime  of  his  said  brother,  then  he  devised 
the  said  messuage,  &c,  to  the  use  of  his  brother,  George  Lane, 
his  heirs  and  assigns  forever.  It  was  held  that  this  was  a  con- 
tingent remainder  in  Catherine  Benger.  (d) 

(a)  Fearne,  Cont.  Rem.  5.  8th  edit. 

(6)  Arton  v.  Hare,  Poph.  97.     Large's  case,  3  Leon.  182.  (c)  1  Inst.  378,  a. 

(d)  Doe  v.  Scudamore,  2  Bos.  &  Pul.  289. 

void."  2  Bl.  Coram.  169 — 171.  See  also  4  Kent,  Comm.  208,  note  (a).  Blaekstone 
has  followed  the  classification  of  Ld.  Ch.  Justice  Willes,  in  Parkhurst  v.  Smith,  Willes, 
R.  327,  338;  3  Atk.  135,  139,  S.  C.     Post,  p.  214. 

[It  is  the  uncertainty  of  the  right  which  renders  a  remainder  contingent,  and  not  the 
uncertainty  of  the  actual  enjoyment.     Williamson  v.  Field,  2  Sandf.  Ch.  R.  533.] 


Title  XVI.     Remainder.     Ch.  I.  s.  16—21.  707 

16.  In  the  contingent  remainders  which  fall  under  this  head, 
the  event  which  makes  them  contingent,  does  not  in  any  way 
depend  on  the  manner  in  which  the  particular  estate  determines ; 
as,  whether  it  determines  in  one  manner  or  another,  the  re- 
mainder takes  place  equally.  This  distinguishes  them  from  the 
first  sort. 

17.  The  third  kind  of  contingent  remainder  is,  where  it  is 
limited  to  take  effect  upon  an  event  which,  though  it  certainly 
must  happen  some  time  or  other,  yet  may  not  happen  till  after 
the  determination  of  the  particular  estate.  For  it  is  a  rule  of 
law,  which  will  be  discussed  in  a  subsequent  chapter,  that  a 
remainder  must  vest,  either  during  the  continuance  of  the  par- 
ticular estate,  or  at  the  very  instant  of  its  determination.  So 
that  if  the  event  does  not  happen  during  the  continuance  of  the 
particular  estate,  the  remainder  becomes  void. 

18.  Thus,  Lord  Coke  says,  if  a  lease  be  made  to  J.  S.  for  his 
life,  and  after  the  death  of  J.  D.  to  remain  to  another  in  fee,  this 
remainder  is  contingent ;  for  though  J.  D.  must  die  some  time 
or  other,  yet  he  may  survive  J.  S.,  by  whose  death  the  particular 
estate  will  determine,  and  the  remainder  become  void,  (a) 

19.  The  fourth  sort  of  contingent  remainder  is,  where  it  is  lim- 
ited to  a  person  not  ascertained,  or  not  in  being  at  the  time  when 
such  limitation  is  made. 

20.  Thus,  if  a  lease  be  made  to  one  for  life,  remainder  to  the 
right  heirs  of  J.  S. ;  now,  there  can  be  no  such  person  as  the  right 
heir  of  J.  S.  till  his  death,  for  nemo  est  hceres  viventis ;  and  J.  S. 
may  not  die  till  after  the  determination  of  the  particular  estate ; 
therefore,  such  remainder  is  contingent,  (b) 

21.  So  where  an  estate  is  limited  to  two  persons  during 

their  *  joint  lives,  remainder  to  the  survivor  of  them  in  fee,     *206 
such  remainder  is  contingent,  because  it  is  uncertain  which 
of  them  will  survive,  (c) ' 

(a)  Boraston's  case,  3  Rep.  20,  a.        (b)  4  Inst.  378,  a.    3  Eep.  10,  a.        (c)  Cro.  Car.  102. 


1  A  testator  gave  to  his  wife  the  use  and  improvement  of  his  lands  while  she  should 
remain  his  widow  ;  and  in  ease  of  her  death  or  marriage,  the  land  then  to  be  divided 
among  his  surviving  sons.  It  was  held,  that  the  devise  over  was  to  such  of  his  sons  as 
should  be  survivors  at  the  termination  of  the  wife's  estate  for  life  ;  and  that  the  remain- 
der was  contingent,  upon  the  uncertainty  which  of  the  sons  would  then  be  living. 
Olney  v.  Hull,  21  Pick.  311.     So,  where  one  devised  lands  to  his  daughter  II.  and  her 


708  Title  XVI.     Remainder.     Ch.  I.  s.  22—24. 

22.  The  usual  remainder  limited  in  all  settlements  before  mar- 
riage, to  the  first  and  other  sons  of  the  intended  husband,  by  his 
intended  wife,  is  a  contingent  remainder. 

23.  The  instances  produced  of  the  first  kind  of  contingent 
remainders  may  appear  to  be  cases  of  conditional  limitations,  not 
falling  strictly  within  the  definition  of  a  remainder ;  but  it  will 
be  proved  in  the  next  chapter,  that  they  are  remainders  in  the 
most  strict  and  technical  sense  of  the  word. 

24.  There    are   some  cases  which  fall   literally  under  one  or 


husband,  for  their  respective  lives,  and  after  their  deaths,  to  the  heirs  of  H. ;  it  was 
held  that  the  remainder  was  contingent  until  the  death  of  H.,  and  then  vested  in  the 
persons  who  were  then  her  heirs.     Richardson  v.  Wheatland,  7  Met.  169. 

[So  where  a  testator  devised  land  to  his  wife  during  her  life,  and  at  her  decease  to  be 
divided  among  his  children  and  the  heirs  of  such  as  may  then  be  deceased,  the  remain- 
der was  held  contingent  until  the  death  of  the  wife,  and  then  became  vested.  Hunt  v. 
Hall,  37  Maine,  (2  Heath,)  363. 

A  testatrix  devised  to  T.  for  life,  and,  at  his  death,  to  his  second  son  on  his  attaining 
twenty-one  ;  but  in  default  of  there  being  a  second  son  of  T.,  to  the  second  son  of  C,  on 
attaining  twenty-one.  After  her  death,  T.  had  sons,  the  second  of  whom,  G.,  died  before 
he  was  twenty-one.  T.  died  intestate.  Held  that  G.  did  not  take  in  fee  with  an  execu- 
tory devise  over,  but  took  a  contingent  remainder;  and  that  the  contingency  of  G.'s 
becoming  twenty-one,  not  having  happened  at  the  death  of  T.,  the  limitation  over  failed, 
and  the  heir  at  law  was  entitled.  Alexander  v.  Alexander,  30  Eng.  Law  &  Eq.  Eep. 
435.  See  also  Festing  v.  Allen,  12  Mee.  &  W.  279 ;  and  Doe  d.  Rew  v.  Lucraft,  8  Bing. 
386.  See  also  Tayloe  v.  Gould,  10  Barb.  Sup.  Ct.  388  ;  Evers  v.  Challis,  2  Eng.  Law 
&Eq.  Rep.215.] 

Where  an  estate  is  left  to  parents,  for  their  lives,  and  then  to  the  use  of  such  children 
as  may  be  born  between  them  ;  the  remainder  ceases  to  be  contingent  immediately  on 
the  birth  of  a  child ;  but  still  might  be  defeasible  and  determinable  on  a  subsequent 
contingency ;  and,  upon  the  happening  of  such  contingency,  might  pass,  by  way  of 
shifting  executory  use,  to  other  persons  in  fee  ;  thus  mounting  a  fee  upon  a  fee.  Carver 
v.  Jackson,  4  Pet.  1,  90. 

A  devise  "  to  A,  and  to  his  male  children,  lawfully  begotten  of  his  body,  and  their 
heirs  forever,  to  be  equally  divided  among  them  and  their  heirs  forever,"  passes  a 
life-estate  to  A,  with  a  contingent  remainder  in  fee  to  his  children,  he  having  no  child 
at  the  time  of  making  the  will.     Sisson  v.  Seabury,  1  Sumn.  235. 

Where  lands  were  devised  to  A  for  life,  and  if  he  had  issue,  then  to  him,  his  heirs 
and  assigns  forever ;  but  if  he  had  no  issue,  then  to  the  testator's  children  in  fee ;  and 
A  suffered  a  common  recovery,  and  had  issue,  who  died  during  his  life  ;  it  was  held 
that  the  ulterior  limitation  was  a  contingent  remainder,  and  not  an  executory  devise, 
and  was  barred  by  the  recovery.    Waddell  v.  Rattew,  5  Rawle,  231. 

Where  a  contingent  remainder  is  limited  to  persons,  not  by  name,  but  by  description 
as  a  class,  and  the  contingency  consists  not  merely  in  the  uncertainty  of  the  persons 
who  may  compose  the  class  when  the  remainder  is  to  take  effect,  but  in  events  wholly 
disconnected  with  them,  and  collateral ;  the  estate  will  vest  in  the  persons  answering 
the  description  when  the  contingency  happens.    Den  v.  Crawford,  3  Halst.  90. 


Title  XVI.     Remainder.     Ch.  I.  s.  24—27.  709 

other  of  the  two  last  kinds  of  contingent  remainders,  which  are 
nevertheless  classed  among  vested  estates. 

25.  With  respect  to  those  cases  which  are  exceptions  to  the 
third  kind  of  contingent  remainders,  it  has  been  held  that  a 
limitation  to  A  for  eight//  or  ninety  years,  if  he  shall  so  long-  live, 
with  a  remainder  over  after  the  death  of  A  to  B  in  fee,  is  not  a 
contingent  remainder ;  for  the  mere  possibility  that  a  life  in  being 
may  endure  for  eighty  or  ninety  years  after  such  a  limitation  is 
made,  does  not  amount  to  a  degree  of  uncertainty  sufficient  to 
render  a  remainder  contingent.1 

26.  Lord  Derby  covenanted  to  stand  seised  to  the  use  of  him- 
self for  life,  remainder  to  another  person  for  eighty-nine  years, 
if  Ferdinando,  his  son,  should  so  long  live ;  remainder  after  the 
death  of  Ferdinando  to  his  second  son  in  tail.  Adjudged  that 
the  remainder  vested  presently,  and  that  the  possibility  of  Ferdi- 
nando's  outliving  the  term  of  eighty-nine  years  would  not  make 
it  contingent,  (a) 

27.  A  made  a  feoffment  in  fee  to  the  use  of  himself  for  life, 
remainder  to  the  feoffees  for  eighty  years,  if  B  and  C  his  wife, 
should  so  long  live  ;  if  C  survived  B,  then  to  the  use  of  C  for 
life ;  after  her  death,  to  the  use  of  the  first  son  of  C  and  B  in 
tail ;  for  default  of  such  issue,  to  the  use  of  D  and  E,  and  the 
heirs  of  their  bodies,  remainder  to  the  right  heirs  of  A.  A  died, 
and  C  died,  leaving  a  son,  who  died  without  issue ;  thereupon 
D  and  E  entered,  and  made  a  lease  to  the  plaintiff,  upon  whom 
the  defendant,  as  son  and  heir  of  A,  entered. 

The  question  was,  whether  the  remainder  in  tail  to  the  first 
son  of  C  and  B,  and  the  remainder  to  D  and  E  were 
executed,  *  or  were  contingent  upon  the  estate  for  life  to  *  207 
C.  Adjudged  that  they  were  vested  and  not  contingent ; 
that  the  possibility  of  B  and  C  outliving  the  term  of  eighty-nine 
years,  did  not  make  the  remainders  to  them  contingent ;  and 
Lord  Derby's  case  was  stated  and  admitted,  (b) 

(a)  Lord  Derby's  case,  Lit.  Rep.  370.    Pollcx.  67. 

(b)  Napper  v.  Sanders,  Hut.  118. 


1  If  the  particular  tenant  is  so  old,  at  the  creation  of  the  estate,  that  by  the  common 
tables  of  the  probability  of  duration  of  life,  he  will  not  live  out  the  number  of  years 
mentioned,  qucere  whether  his  estate  is  not  to  be.regarded  as  a  freehold.  And  see  Fcarnc 
on  Kern.  p.  21—23  ;  Post,  ch.  3,  §  8,  9,  10. 

vol.  i.  60 


710  Title  XVI.    Remainder.     Ch.  I.  s.  28—30. 

28.  This  doctrine  is  further  confirmed  by  Lord  Hale,  who  has 
laid  it  down  that  if  a  feoffment  were  made  to  the  use  of  A  for 
ninety-nine  years,  if  he  should  so  long  live,  and  after  his  death 
to  the  use  of  B  in  fee,  this  should  not  be  contingent,  but  it 
should  be  presumed  that  his  life  would  not  exceed  ninety-nine 
years,  (a) 

29.  If  the  term  of  years  is  so  short  as  to  leave  a  common  pos- 
sibility that  the  life  on  which  it  is  determinable  may  exceed  it, 
the  remainder  will  be  deemed  contingent;  therefore,  if  an  estate 
is  limited  to  A  for  twenty-one  years,  if  he  shall  so  long  live,  and 
after  his  death  to  B  in  fee,  this  is  a  contingent  remainder,  be- 
cause there  is  no  improbability  in  supposing  that  the  life  may 
exceed  the  term,  (b) 

30.  Sir  James  Beverly  devised  lands  to  his  eldest  son  Thomas 
for  the  term  of  sixty  years,  if  he  should  so  long  live  ;  from  and 
after  his  decease,  to  his  grandson  James,  the  eldest  son  of  Thomas 
in  tail  mail;  remainder  in  tail  to  Thomas  his  next  brother. 
James  the  grandson,  intermarried  with  the  plaintiff,  upon  which 
a  settlement  was  made,  and  a  common  recovery  suffered  by 
Thomas  the  father,  and  James  the  son. 

It  was  objected  that  the  devise  to  Thomas,  being  only  of  a 
term  of  sixty  years,  if  he  should  so  long  live,  then  to  James, 
that  the  freehold,  during  the  life  of  Thomas,  was  in  abeyance, 
and  no  good  tenant  could  be  made  to  the  prcecipe.  By  con- 
sequence, James  the  grandson,  being  dead  without  issue  male, 
the  lands  belonged  to  the  defendant  Thomas,  under  the  entail. 

Mr.  Finch  argued  for  the  plaintiff  that  the  recovery  was  well 
suffered  ;  that  the  limitation  of  the  entail  was  good,  expectant 
on  the  term  for  sixty  years  ;  and  that  it  was  so  resolved  in  Lord 
Derby's  case.  That  the  devise  to  Thomas  for  sixty  years,  if  he 
should  so  long  live,  and  from  and  immediately  after  his  decease 
then  over,  ought  to  be  intended  of  his  dying  within  the  term, 
which  was  highly  presumable ;  Thomas  being  then  above  forty 
years  old,  the  possibility  that  Thomas  might  overlive  the  term 
was  very  remote ;  so  that  there  was  not  any  gap  or  hiatus 
208  *  in  the  *  settlement :  but  by  this  construction  the  freehold 
vested  immediately  in  James ;  and  Thomas  had  only  a 
term  for  sixty  years,  if  he  should  so  long  live. 

(«)  Pollex.  67.  (b)  3  Kep.  20.  a. 


Title  XVI.    Remainder.     Ch.  I.  s.  30—33.  711 

The  Court  said  it  would  be  hard  to  make  such  construction 
en  the  words  of  the  will,  as  to  say,  where  a  term  is  limited  to  a 
man  for  sixty  years,  if  he  shall  so  long  live,,  and  from  and  after 
his  decease  to  A  B,  that  it  must  be  meant,  from  and  after  his 
decease  within  the  term ;  for  suppose  he  should  outlive  the  term, 
should  the  remainder-man  take  in  the  lifetime  of  Thomas  ?  That 
were  a  construction  contrary  to  the  words  and  intention  of  the 
testator,  (a) 

31.  In  all  cases  where  it  is  not  admitted  that  there  is  such  a 
degree  of  possibility  of  the  life's  exceeding  the  term,  as  is  sup- 
posed sufficient  to  create  a  contingency  in  the  remainder,  there 
(says  Mr.  Fearne)  the  remainder  cannot  fall  within  the  descrip- 
tion of  a  freehold  to  commence  in  futuro  ;  for  when  we  suppose 
the  remainder  to  be  vested,  we  of  consequence  admit  that  it 
passes  immediately,  subject  to  and  expectant  on  the  preceding 
term ;  otherwise  it  cannot  be  vested ;  and  then  it  is  a  freehold 
commencing  in  prcesenti  and  not  in  futuro.  If  the  life  cannot 
exceed  the  term,  and  the  term  must  determine  with  the  life,  the 
limiting  an  estate  to  commence  from  the  expiration  of  the  life,  is 
in  effect  limiting  it  to  commence  from  the  determination  of  the 
term.  In  which  latter  mode  of  limitation  there  could  exist  no 
doubt  of  the  remainder's  passing  immediately  and  being  vested. 
Upon  these  principles  alone,  without  recurring  to  any  other,  the 
case  put,  and  distinction  taken,  by  Lord  Hale,  may  be  admitted 
as  law.  (b) 

32.  There  are  three  exceptions  to  the  fourth  sort  of  contingent 
remainders.  The  first  arises  from  a  rule  of  law,  that  wherever 
the  ancestor  takes  an  estate  of  freehold,  and  a  remainder  is  there- 
on limited  in  the  same  conveyance  to  his  heirs,  or  to  the  heirs  of 
his  body,  such  remainder  is  immediately  executed  in  the  ancestor 
so  taking  -the  freehold,  and  is  not  contingent,  (c)  1 

33.  The  second  exception  arises  from  a  rule  of  law,  which  has 

(a)  Beverley  v.  Beverley,  2  Vern.  131.  (i)  Ante,  §  28. 

(c)  Shelley's  case,  1  Rep.  104. 

1  The  origin  and  reasons  of  this  rule,  and  the  cases  governed  by  it,  will  be  found  in 
Vol.  IV.  tit.  32,  ch.  23,  and  Vol.  VI.  tit.  38,  ch.  14.  See  also  4  Kent,  Comra.  p.  216, 
217.  [The  rule  in  Shelley's  case  is  not  applicable  to  a  devise  of  an  equitable  estate  for 
life  to  the  ancestor,  and  a  legal  estate,  after  the  termination  of  the  life-estate,  to  the 
heirs.     Ward  v.  Amory,  1  Curtis,  Ct.  Ct.  419.] 


712  Title  XVI.     Remainder.     Ch.  I.  s.  33—36. 

been  stated  in  Title  XL,  Use,  That  an  ultimate  limitation  to  the 
right  heirs  of  the  grantor  of  an  estate  is  void  ;  and  it  will 

209  *  continue  *  in  him  as  his  old  reversion,  and  not  as  a  re- 
mainder, though  the  freehold  be  expressly  limited  from 

him.  (a)  f 

34.  The  third  exception  arises  from  the  respect  which  the  law 
pays  to  the  intent  of  a  testator,  where  it  can  be  plainly  collected 
from  his  will  that  he  used  the  word  heir  as  a  descriptio  persona, 
or  sufficient  designation  of  the  person  for  the  remainder  to  vest ; 
notwithstanding  the  general  rule  that  nemo  est  hares  viventis.% 

35.  There  is  a  very  material  difference  between  that  kind  of 
uncertainty  which  makes  the  estate  in  remainder  contingent,  and 
an  uncertainty  of  another  kind,  namely,  the  uncertainty  of  a  re- 
mainder's ever  taking  effect  in  possession  ;  for  wherever  there  is 
a  particular  estate,  the  determination  of  which  does  not  depend 
on  any  uncertain  event,  and  a  remainder  is  thereon  absolutely 
limited  to  a  person  in  esse,  and  ascertained ;  in  that  case,  not- 
withstanding the  nature  and  duration  of  the  estate  limited  in 
remainder  may  be  such  as  that  it  may  not  endure  beyond  the 
particular  estate,  and  may,  therefore,  never  take  effect,  or  vest  in 
possession,  yet  it  is  not  a  contingent,  but  a  vested  remainder.  As 
if  a  lease  be  to  A  for  life,  remainder  to  B  for  life  or  in  tail,  here, 
notwithstanding  B  may  possibly  die  without  issue  in  the  lifetime 
of  A,  and  consequently  never  come  into  possession,  yet  is  his 
remainder  vested  in  interest,  and  by  no  means  comprised  in  the 
legal  notion  of  a  contingent  estate,  (b) 

36.  It  is  not  the  uncertainty  of  ever  taking  effect  in  possession 
that  makes  a  remainder  contingent ;  for  to  that  every  remainder 
for  life  or  in  tail,  expectant  on  an  estate  for  life,  is  and  must  be 
liable,  as  has  been  observed  in  the  preceding  section.  The 
present  capacity  of  taking  effect  in  possession,  if  the  possession 
were  to  become  vacant,  and  not  the  certainty  that  the  possession 
will  become  vacant,  before  the  estate  limited  in  remainder  deter- 

(a)  Tit.  11,  c.  4,  [§  30,  31,  and  notes.] 

(b)  [Fearne,  Cont.  Rem.  32S.     Ives  r.  Legge,  3  T.  R.  488,  note.] 

[t  Now  altered  as  regards  such  limitations  in  deeds  executed  after  the  31st  day  of 
December,  1833.     See  Stat.  3  &  4  Will.  4,  c.  106,  §  3. J 

[|  The  cases  in  which  this  point  has  occurred  will  be  stated  in  title  38,  Devise, 
ch.  14.] 


Title  XVI.     Remainder.     Ch.  I.  s.  36—39.  713 

mines,  universally  f  distinguishes  a  vested  remainder  from  one 
that  is  contingent,  (a) 

*37.  Thus,  if  there  be  a  lease  for  life  to  A,  remainder  *210 
to  B  for  life,  (remainder  over  in  fee ;)  the  remainder  to  B, 
although  it  may  possibly  never  take  effect  in  possession,  be- 
cause B  may  die  before  A,  yet  from  the  very  instant  of  its 
limitation  it  is  capable  of  taking  effect  in  possession,  if  the  pos- 
session were  to  fall  by  the  death  of  A.  It  is,  therefore,  vested 
in  interest ;  though,  perhaps,  the  interest  so  vested  may  determine 
by  B's  death,  before  the  possession  he  waits  for  may  become 
vacant,  (b) 

38.  On  the  other  hand,  if  there  be  a  lease  for  life  to  A,  and 
after  the  death  of  J.  D.,  remainder  to  B  in  tail,  in  that  case  the 
remainder  to  B  is  not  capable  of  taking  effect  in  possession 
during  the  life  of  J.  D.,  although  the  possession  should  fail  by 
the  determination  of  A's  estate.  But  if  J.  D.  chance  to  die 
before  the  determination  of  the  particular  estate,  then  does  B's 
remainder,  by  such  event,  become  capable  of  taking  effect  in 
possession,  when  it  shall  happen  to  fall,  and  is  then  in  the  same 
state  as  if  it  had  been  originally  limited  without  any  regard  to 
the  death  of  J.  D.  (c) 

39.  This  very  essential  alteration  in  the  nature  of  B's  remain- 
der, occasioned  by  the  timely  event  of  J.  D.'s  death,  is  the  change 
of  a  contingent  into  a  vested  estate.  Before  that  event,  it  had 
not  the  capacity  of  vesting  in  possession ;  and  it  was  doubtful 
whether  it  ever  would  have  it  or  not ;  it  was,  therefore,  not 
vested  at  all.  By  that  event  it  acquires  the  capacity  of  vesting 
in  possession,  when  the  possession  becomes  vacant ;  it  is  therefore 
vested  in  interest,  though  it  is  yet  uncertain  whether  it  will  ever 
vest  in  possession ;  for  it  is  still  possible  that  B  may  die  without 
issue  during  the  continuance  of  the  particular  estate,  (d) 

(a)  (Fearne,  Cont.  Rem.  328,  329.)         (&)  Idem.  216,  (329.)        (c)  Idem.         (</)  Idem.  217. 


[t  Mr.  Fearne,  * 329, .(216,)  uses  the  word  "universally  ;"  but  it  may  be  questioned 
whether  that  expression  does  not  require  some  qualification  ;  for  if  A,  copyholder  for 
life  with  remainder  to  B,  and  A  forfeits  Ws  life-estate,  B  cannot  enter  for  the  forfeiture, 
but  the  lord  only,  who  will  hold  during  the  life  of  A,  so  that  B's  remainder,  though 
vested,  has  not  a  present  capacity  of  taking  effect  in  possession,  if  the  particular  estate 
were  to  determine  immediately.  9  Co.  107  ;  Margaret  Podger's  case;  Wade  r.  Bache. 
I  Saund.  151  ;  2  Brownl.  154.] 

60* 


714  Title  XVI.     Remainder.     Ch.  I.  s.  40—43. 

40.  It  follows,  that  whenever  the  preceding  estate  is  limited, 
so  as  to  determine  on  an  event  which  certainly  must  happen,  and 
the  remainder  is  so  limited  to  a  person  in  esse,  and  ascertained 
that  the  preceding  estate  may,  by  any  means,  determine  before 
the  expiration  of  the  estate  limited  in  remainder,  such  remainder 
is  vested.  On  the  contrary,  whenever  the  preceding  estate,  ex- 
cept in  the  cases  before  mentioned  as  exceptions  to  the  descrip- 
tions of  a  contingent  remainder,  is  limited,  so  as  to  de- 

211*  termine  *  only  on  an  event  which  is  uncertain,  and  may 
never  happen  ;  or  wherever  the  remainder  is  limited  to  a 
person  not  in  esse,  or  not  ascertained ;  or  wherever  it  is  limited 
so  as  to  require  the  concurrence  of  some  dubious  uncertain 
event  independent  of  the  determination  of  the  preceding  estate, 
and  duration  of  the  estate  limited  in  remainder  to  give  it 
a  capacity  of  taking  effect  ;  then  the  remainder  is  contin- 
gent, (a) 

41.  Where  an  estate  is  limited  to  A  for  life,  remainder  to  B 
during  the  life  of  A,  it  is  a  vested  remainder :  for  here  is  a  pre- 
ceding estate,  to  determine  on  an  event  which  certainly  must 
happen,  the  death  of  A ;  and  the  remainder  is  so  limited  to  a 
person  in  esse,  that  the  preceding  estate  may,  by  some  means, 
viz.,  by  forfeiture  or  surrender,  determine  before  the  expiration  of 
the  estate  limited  in  remainder,  that  is,  before  the  expiration 
of  A's  life ;  accordingly,  if  A's  life  estate  be  not  expired  at  the 
determination  of  the  particular  estate,  which  it  will  not  if  A 
should  commit  a  forfeiture,  or  make  a  surrender,  then  will  the 
remainder  take  effect  in  possession,  (b) 

42.  This  doctrine  was  formerly  doubted ;  but  it  has  been  re- 
solved in  the  following  case,  that  a  remainder  to  trustees,  during 
the  life  of  a  tenant  for  99  years,  if  he  should  so  long  live,  to  take 
effect  from  and  after  the  death  of  such  tenant  for  life,  or  other 
sooner  determination  of  the  estate  limited  to  him,  was  a  vested 
remainder. 

43.  John  Dormer,  upon  the  marriage  of  his  eldest  son,  con- 
veyed several  estates  (after  a  number  of  preceding  limitations  for 
life  and  in  tail)  to  the  use  of  Robert  Dormer  for  99  years,  if  he 
should  so  long  live ;  and,  from  and  after  the  death  of  the  said 
Robert  Dormer,  or  other  sooner  determination  of  the  estate  lim- 

(a)  Fearne,  Cont.  Kem.  217.  (6)  Idem. 


Title  XVI.     Remainder.     Ch.  I.  s.  43.  715 

ited  to  him  for  99  years,  to  the  use  of  trustees  and  their  heirs, 
during  the  life  of  the  said  Robert  Dormer,  upon  trust  to  preserve 
the  contingent  remainders  thereinafter  limited  ;  and  after  the  end 
or  other  sooner  determination  of  the  said  term,  to  the  use  of  the 
first  and  other  sons  of  the  said  Robert  Dormer,  successively  in 
tail  male,  with  remainder  over. 

One  of  the  questions  in  this  case  was,  whether  the  remainder, 
limited  to  trustees  to  preserve  contingent  remainders,  was  a  vested 
or  a  contingent  remainder. 

The  Court  of  King's  Bench  determined,  that  it  was  a  vested, 
and  not  a  contingent  remainder. 

Upon  a  writ  of  error  to  the  House  of  Lords,  *the  Judges     *  213 
having  been  consulted  on  this  case,  Lord  Chief  Justice 
Willes  delivered  their  unanimous  opinion  ;  of  which  I  shall  tran- 
scribe that  part  which  relates  to  the  present  question. 

"  We  deny  that  this  estate,  so  limited  to  the  trustees,  was  such 
a  contingent  remainder,  that  it  did  not  vest  immediately. 
The  *  notion  of  a  contingent  remainder,  is  a  matter  of  a  *  214 
good  deal  of  nicety ;  and,  if  I  should  trouble  you  with  all 
that  is  said  in  the  books  concerning- contingent  remainders,  and 
the  instances  that  are  put  of  such  contingent  remainders,  I  am 
afraid  it  would  rather  tend  to  puzzle  than  enlighten  the  case.  I 
choose,  therefore,  to  tell  your  Lordships  what  are  the  contingent 
remainders  that  do  not  vest,  and  what  remainders  vest  immedi- 
ately, though  they  are  sometimes  (though  very  improperly)  called 
contingent  remainders.  The  definition  which  was  given  by  the 
counsel  for  the  appellants  of  a  contingent  remainder  which  does 
not  vest  is,  where  the  particular  estate  may  determine  before  the 
remainder  can  take  place  in  possession  ;  and  that  if  it  is  uncer- 
tain when  it  will  take  place  in  possession,  and  it  may  happen 
that  it  never  will  take  place  in  possession,  the  remainder  will  not 
vest.  But  this  is  not  a  just  definition;  for,  if  this  were  true,  it 
would  overturn  all  the  settlements  that  ever  were  made.  I  will 
mention  but  one  instance,  though  I  might  mention  a  thousand  ; 
as  where  an  estate  is  limited  to  A  for  his  life,  remainder  to  an- 
other, and  the  heirs  of  his  body.  I  believe  no  man  in  his  senses 
ever  doubted  but  this  was  a  vested  remainder ;  and  yet  it  is  within 
their  definition ;  for,  suppose  the  remainder-man  in  tail  dies  with- 
out issue,  before  the  tenant  for  life,  then  this  remainder  will  never 
take  place  in  possession.     As,  therefore,  this  is  not  a  proper  defi- 


716  Title  XVI.     Remainder.     Ch.  I.  s.  43. 

nition,  we  beg  leave  to  acquaint  your  Lordships  what  we  think 
is ;  and  we  think  there  are  but  two  sorts  of  contingent  remain- 
ders which  do  not  vest.  1st.  Where  the  person  to  whom  the 
remainder  is  limited  is  not  in  esse  at  the  time  of  the  limitation ; 
2dly.  Where  the  commencement  of  the  remainder  depends  on 
some  matter  collateral  to  the  determination  of  the  particular 
estate.  Many  instances  of  such  contingent  remainders  might  be 
put,  which  will  fall  under  one  of  these  heads ;  and  I  will  beg 
leave  to  put  one  of  each,  the  better  to  illustrate  this  matter.  If 
the  first  limitation  be  to  one  for  life,  or  for  years,  and  the  next 
limitation  to  the  son  of  B,  who  at  the  time  has  no  children,  this 
is  a  contingent  remainder  of  the  first  sort.  If  there  be  a  limita- 
tion to  A  for  life,  remainder  to  B  after  the  death  of  J.  S.,  or 
when  a  third  person  then  at  Rome  returns  from  thence,  this  is  a 
contingent  remainder  of  the  second  sort.  In  the  first  case,  if  the 
tenant  for  life  should  die,  or  the  term  for  years  expire,  before  B 

has  a  son  born,  the  remainder  never  vests  at  all.     And 
215  *     *  in  the  second  case,  if  B  dies  before  J.  S.,  or  before  the 

man  returns  from  Rome,  the  remainder  never  vests ;  be- 
cause the  death  of  J.  S.,  or  the  return  of  the  person  from  Rome, 
were  both  conditions  precedent.  And  these  are  instances, 
amongst  many  others,  of  contingent  remainders  which  do  not 
vest,  and  of  which  you  may  find  great  variety  in  Boraston's 
case,  3  Coke,  Rep.  20.  But  the  present  limitation  to  the  trustees 
plainly  does  not  fall  under  either  of  these  heads.  The  trustees 
were  persons  in  being  ;  and  their  estate  was  not  to  commence  on 
any  collateral  matter,  but  upon  all  determinations  of  the  estate  of 
Robert  Dormer  which  could  happen  during  his  life  ;  and  the 
estate  was  limited  to  them  for  no  longer  time.  To  enforce  and 
illustrate  this,  I  beg  leave  to  mention  two  or  three  other  things. 
Will  any  one  say,  that  any  thing  can  descend  to  the  heir  that  did 
not  vest  in  the  ancestor ;  so  that,  if  nothing  vested  in  the  trus- 
tees, the  limitation  to  them  and  their  heirs  is  nonsensical ;  for, 
according  to  this  notion,  if  they  should  die  before  the  contingen- 
cies happen,  their  heirs  can  take  nothing  ;  and  yet  this  word  heirs 
has  been  put  in  every  such  limitation  for  200  years  last  past,  for 
it  is  so  long  since  the  Statute  of  Uses ;  so  that  during  that  time 
we  have  been  all  in  the  dark,  and  this  new  light  is  but  just 
sprung  up,  which,  if  it  prevail,  for  another  reason  as  well  as  this, 
will  overturn  all  the  settlements  for  200  years  last  past.     For  in 


Title  XVI.     Remainder.     Ch.  I.  s.  43—45.  717 

every  one  of  them,  the  limitation  is  either  in  the  same  words  as 
the  present,  or,  after  the  end  or  other  sooner  determination  of  the 
particular  estate,  which  are  words  tantamount  to  this ;  for  end  or 
determination  certainly  comprehends  death,  as  well  as  effluxion 
of  time.  If,  therefore,  I  could  not  make  this  consistent  with  the 
rules  of  law,  though  I  humbly  apprehend  I  plainly  have,  I  should 
•rather  choose  to  put  a  construction  on  these  words  contrary  to 
the  rules ^f  law,  than  overturn  many  thousand  settlements,  ac- 
cording to  this  maxim,  founded  on  the  best  reason,  communis 
error  facit  jits,  and,  ut  res  mag-is  valeat  quam  pereat.  But  the 
present  case,  for  the  reasons  I  have  already  mentioned,  is  not,  I 
think,  liable  to  this  objection.  To  prove  which,  I  beg  leave  only 
to  put  one  case  : — A,  tenant  in  fee,  grants  an  estate  to  B  for  99 
years,  determinable  in  his  life.  Supposing  B  outlive  the  term, 
or  surrender,  or  forfeit,  no  one,  I  believe,  will  say  but  that  A  may 
enjoy  the  estate  again.  If  so,  a  contingent  freehold  was  in  him 
during  the  life  of  B  ;  for  it  could  not  be  in  B,  because 
*  he  had  only  a  chattel  interest ;  and  it  could  not  be  in  *  216 
any  one  else ; — and  if  it  were  in  A,  it  must  be  a  vested 
interest,  for  it  was  never  out  of  him  ;  and  if  A  had  a  contingent 
freehold  during  the  life  of  B,  no  one  can  say  but  that  he  might 
grant  it  over ;  and  if  he  do,  it  must  be  of  the  same  nature  it  was 
when  it  was  in  A,  and  consequently,  a  vested  freehold.  And 
this  case  I  have  put  is  expressly  held  to  be  law  in  Co.  Lit.  42,  «, 
in  Cholmeley's  case,  2  Co.  51,  a,  and  in  the  year  book  of  Edward 
III.  which  is  there  cited."     The  judgment -was  affirmed,  (a) 

44.  It  frequently  happens  that  contingent  remainders  intervene 
between  the  particular  estate,  and  other  limitations  over ;  upon 
which  cases,  whenever  a  contingent  remainder  is  limited,  which 
is  followed  by  another  limitation  over,  if  the  contingent  limita- 
tion be  not  in  fee,  the  subsequent  limitation  may  be  vested,  if 
made  to  a  person  in  esse,  (b) 

45.  Thus,  if  an  estate  be  limited  to  A  for  life,  remainder  to 
his  first  and  other  sons  in  tail,  remainder  to  B  for  life,  remainder 
to  his  first  and  other  sons  in  tail ;  if  B  has  a  son  born  before  A, 
such  son  will  have  a  vested  remainder  in  him.     But  if  A  should 

(a)  Smith  d.  Dorner  v.  Parkhurst,  3  Atk.  135.  Willes,  R.  327.  6  Bro.  Pari.  Ca.  352. 
Willes,  Pop.  337.  (b)  Fearne,  Cont.  Eem.  222. 


718  Title  XVI.     Remainder.     Ch.  I.  s.  45—50. 

afterwards  have  a  son,  he  will  take  a  vested  estate  precedent  to 
that  of  B's  son.  (a)  ' 

46.  Lands  were  limited  to  husband  and  wife  for  their  lives, 
and  after  their  decease  to  their  first  issue  male,  and  to  the  heirs 
male  of  such  issue,  and  so  over  to  the  second,  third,  and  fourth 
issue  male,  &c.  And  for  want  of  such  issue,  to  the  heirs  male  of 
the  body  of  the  said  husband  and  wife.  It  was  held  that  this, 
last  limitation  should  be  executed  sub  modo ;  that  rf|  in  such 
manner  as  to  open  and  separate  itself  from  the  first  estate  for 
life,  whenever  the  contingency  happened,  (b) 

47.  The  preceding  cases  are  instances  where  the  contingency 
of  the  intervening  remainders  arose  from  their  being  limited  to 
persons  not  in  esse.  But  if  there  be  a  remainder  limited  to  a 
person  in  esse,  so  as  to  depend  on  a  contingent  event,  if  the  same 
contingency  be  not  considered  as  extending  to  the  subsequent 
limitations,  such  of  those  limitations  as  are  to  persons  in  esse 
may  be  vested. 

48.  Thus,  in  the  case  of  Napper  v.  Sanders,  one  of  the  ques- 
tions was,  whether  the  remainders,  subsequent  to  the  remainder 
for  the  life  of  C,  were  contingent  or  vested :  it  was  agreed  that 

C's  estate  for   life  was  contingent,  on  the  event  of  her 
217  *     surviving  *  her  husband  :  but  still  it  was  held  that  the 
subsequent  remainders  were  vested,  (c) 

49.  We  have  seen  that  no  remainder  can  be  limited  after  a 
limitation  in  fee  ;  but  two  or  more  several  contingent  estates  in 
fee  may  be  limited,  as  substitutes  or  alternatives,  one  for  the  other, 
and  not  to  interfere ;  but  so  that  one  only  can  take  effect,  and 
every  subsequent  limitation  be  a  disposition  substituted  in  the 
room  of  the  former,  if  the  former  should  fail  of  effect,  (d) 

50.  Sir  Michael  Armyn  devised  certain  lands  to  Evers  Armyn 
for  life  ;  and,  in  case  he  should  have  any  issue  male,  then  to 
such  issue  male  and  his  heirs  forever ;  and  if  he  should  die  with- 
out issue  male,  then  he  devised  the  manor  of  Pickworth  to 
Thomas  Style  in  fee,  and  the  manor  of  Willoughby  to  Sir  Thomas 

(a)  Uvedall  v.  Uvedall,  2  Roll.  Ab.  119.     Tit.  3,  c.  2.  (b)  Bowie's  case,  11  Rep.  79. 

(c)  Ante,  §  27.     Hut.  118.     Tracy  v.  Lethulier,  infra.        (d)  Feame,  Cont.  Rem.  S73. 

1  The  remainder  to  B's  son  would  not  therefore  become  void ;  because  the  limita- 
tions were  not  in  fee,  but  in  tail.     See  post,  §  63. 


Title  XVI.     Remainder.     Ch.  I.  s.  50—53.  719 

Barnardiston  in  fee.  It  was  determined  that  the  first  remainder 
was  a  contingent  fee  to  the  issue  male  of  Evers  Armyn ;  and  the 
remainder  to  Sir  Thomas  Barnardiston  was  a  contingent  fee  also, 
not  contrary  to,  but  concurrent  with  the  former,  according  to  the 
notion  in  Plunkett  v.  Holmes,  and  was  a  contingency  with  a 
double  aspect.  For  if  Evers  had  had  issue  male,  then  the  re- 
mainder had  vested  in  such  issue  male  in  fee  ;  if  he  died  without 
issue  male,  that  is,  (said  Treby,)  if  he  never  had  issue  male,  then 
to  Sir  Thomas  Barnardiston  in  fee.  And  these  were  not  remain- 
ders expectant,  the  one  to  take  effect  after  the  other,  but  were 
contemporary,  (a) 

51.  A  person  devised  all  his  lands  to  his  son  J.  L.  for  the  term 
of  his  natural  life,  and,  after  his  decease,  unto  the  heirs  male  and 
female  of  the  body  of  his  said  son  J.  L.  forever ;  and  if  his  said 
son  should  die,  leaving  no  lawful  issue,  then  he  devised  the 
premises  to  his  daughter  Elizabeth,  and  her  heirs  and  assigns 
forever.  After  the  death  of  the  testator,  J.  L.,  the  son  entered, 
and  suffered  a  recovery. 

The  Court  was  of  opinion,  that  the  son  acquired  an  estate  in 
fee  simple  by  the  recovery.  For  if  it  was  an  estate  tail  in  him, 
there  could  be  no  doubt ;  and  if  he  had  only  an  estate  for  life, 
with  remainder  in  fee  to  his  heirs  male  and  female,  (which  the 
Court  rather  took  it  to  be,)  then  this,  being  a  contingent  remain- 
der, was  destroyed  by  the  common  recovery  ;  and  all  subsequent 
remainders  depending  thereon,  were  also  barred,  according 
*  to  the  case  of  Loddington  v.  Kyme,  which  resembled  *  218 
this  case  in  all  points,  (b) 

52.  A  will  was  made  in  these  words  :  —  "I  give  my  messuage, 
&c,  to  my  son  J.  S.  for  life,  and  after  his  death  unto  all  and 
every  his  children  equally,  and  to  their  heirs  ;  and  in  case  he 
dies  without  issue,  I  give  the  said  premises  unto  my  two  daugh- 
ters and  their  heirs,  equally  to  be  divided  between  them."  It 
was  determined  that  both  the  devises  were  contingent  remainders 
in  fee.  (c) 

53.  A  person  devised  lands  to  his  niece  Dorothy  for  life,  re- 
mainder to  trustees  to  preserve  contingent  remainders,  remainder 

(«)  Loddington  v.  Kyme,  1  Ld.  Raym.  203.  S.  C.  Barnardiston  v.  Carter,  3  Bro.  Far:. 
Ca.  G4.     1  Ld.  Raym.  208.     Infra,  ch.  6. 

(b)  Doe  v.  Holme,  2  Black.  R.  177. 

(c)  Goodriglit  v.  Dunham,  1  Doug.  265. 


720  Title  XVI.     Remainder.     Ch.  I.  s.  53—54. 

to  all  and  every  the  children  of  Dorothy,  begotten  or  to  be 
begotten  by  his  nephew,  J.  C,  and  their  heirs  forever,  to  be 
equally  divided  among  them,  but  if  only  one  child,  then  to  such 
only  child  and  his  or  her  heirs  forever ;  and,  for  default  of  such 
issue,  to  James  Comberback  for  life,  remainder  to  trustees  to  pre- 
serve contingent  remainders.  Lord  Kenyon  said,  there  was 
nothing  to  distinguish  this  case  from  Loddington  v.  Kyme,  and 
Goodright  and  Dunham.  The  clear  intent  of  the  devisor  was, 
that  the  children  of  Dorothy,  if  any,  should  take  a  fee  ;  and  if 
she  had  no  children,  then  that  the  remainders  over  should  take 
effect ;  but  Dorothy  had  children,  by  which  the  limitations  over 
were  defeated,  (a) 

54.  Mr.  Serjeant  Hill,  in  arguing  the  above  cases,  cited  a  de- 
termination of  Lord  Hardwicke  upon  a  case  nearly  similar. 

A  person  devised  to  his  wife  Elizabeth,  and  her  heirs,  all  his 
freehold,  leasehold,  and  personal  estate,  charged  with  .£200,  to 
be  laid  out  on  a  house,  which  he  gave  to  his  daughter  Marthana, 
during  the  term  of  her  natural  life  ;  and  after  her  decease,  then 
the  same  to  go  and  be  enjoyed  by  the  children  of  her  body  be- 
gotten, and  their  heirs  ;  and,  in  default  thereof,  to  his  son  William 
Legge,  his  heirs  and  assigns.  William  Legge  died  in  the  lifetime 
of  Marthana,  but  devised  his  interest  to  the  plaintiff;  and  then 
Marthana  died  without  children.  The  question  was,  whether 
this  devise  to  William  was  good,  which  depended  upon  what 
estate  he  took  by  his  father's  will ;  whether  a  vested  remainder, 
or  a  remainder  depending  upon  the  contingency  or  possibility  of 
Marthana's  dying  without  children. 

Lord  Chancellor.  This  is  a  vested  remainder  in  William 
Legge.  Marthana  took  no  more  than  an  estate  for  life  ; 
219  *  for  *  when  an  estate  for  life  is  expressly  given,  no  greater 
estate  shall  arise  by  implication ;  subsequent  words  of 
contingency  enlarging  the  estate  only,  where  no  express  estate 
for  life  is  devised.  Then,  as  to  children,  the  question  is,  whether 
this  be  a  limitation  to  them  in  fee  or  in  tail.  Had  there  been 
no  remainder  limited  over,  they  would  have  taken  a  contingent 
remainder  in  fee  ;  but  there  being  a  limitation  to  their  uncle,  it 
is  impossible  they  should  die  without  heirs  during  his  or  any  of 
his  children's  life.     The  doubt  arises  from  the  equivocal  words, 

(a)  Doe  r.  Perryn,  3  Term  R.  484.    Doe  v.  Scudamore,  ante,  §  15. 


Title  XVI.     Remainder.     Ch.  I.  s.  54—55.  721 

in  default  thereof;  whether  the£  relate  to  Marthana's  dying  with- 
out children,  or  to  the  children's  dying  without  heirs.     If  to  the 
first,  the  case  will  then  amount  to  that  of  Loddington  v.  Kyme, 
and  make  this  a  fee  with  a  double  aspect ;  or,  as  it  is  called  in 
that  case,  two  concurrent  contingencies,  of  which  either  is  to 
start,  according  as  it  happens,  being  remainders   contemporary, 
and  not  expectant  one  after  another.     But  then  both  will  be  con- 
tingent, as  well  that  to  the  children  of  Marthana,  as  that  to 
William  ;  which  is  a  construction  never  made  without  an  abso- 
lute necessity,  as  there  was  in  Loddington  v.  Kyme,  where  the 
words  were,  "  to  E.  Armyn  for  life ;  and  in   case  he  have  any 
issue  male,  then  to  such  issue  male  and  his  heirs  forever ;  and  if 
he  die  without  issue  male,  then  over."     And  which,  was  a  very 
singular  case.     And  here  is  no  such  necessity  ;  the  words,  in  de- 
fault thereof  taking  in  both  the  contingencies,  as  well  that  of 
Marthana's  dying  without  children,   as   of   her   children   dying 
without  heirs ;  which  brings  it  to  no  more  than  the  common 
ordinary  limitations  in  settlements,  which  take  in  all  the  contin- 
gencies that  can  happen.     And,  as  the  Court  never  construes  a 
limitation  into  an  executory  devise,  where  it  may  take  effect  as 
a  remainder,  because  the  former  puts  the  inheritance  in  abeyance  ; 
so,  neither  does  it  construe  a  remainder  to  be  contingent,  where 
it  can  be  taken  for  vested,  because  the  latter  tends  to  support  the 
estate,  and  the  former  to  destroy  it,  by  putting  it  in  the  power  of 
the  particular  tenant  to  defeat  the  remainder  by  fine  or  feoffment, 
which  would  have  been  the  case  here,  by  this  forced  construction 
of  the  defendant ;  since,  by  taking  this  for  a  contingent  remainder 
in  William,  it  would  have  been  in  Marthana's  power  to  destroy 
the  whole  before  the  birth  of  a  child,  (a) 

55.  Mr.  Fearne  observes,  that  in  this  last  case  the  word  thereof 
upon  which  the  construction  turned,  was  equally  appli- 
cable *to  the  heirs  of  the  children,  as  to  the  children  *220 
themselves ;  and  the  heirs,  being  the  last  antecedent,  there 
was  no  ground  for  excluding  the  reference  to  them ;  which  re- 
duced the  case  to  that  of  a  devise  to  one  and  his  heirs  ;  and  in 
default  of  heirs,  then  to  a  person  who  was  a  collateral  heir  of  the 
first  devisee,  (b) 

(a)  Ives  v.  Legge,  cited  3  Term  Rep.  488.    MSS.  Rep. 
(6)  Fearne,  Coiit.  Rem.  376.    Doe  v.  Reason,  3  Wils.  R.  244. 
VOL.  I.  61 


722  Title  XVI.     Remainder.     Ch.  I.  s.  56 — 61. 

56.  Where  there  is  a  contingent  limitation  in  fee  absolute,  no 
estate  limited  afterwards  can  be  vested. 

57.  Thus,  in  the  case  of  Loddington  v.  Kyme,  it  was  deter- 
mined that  the  remainders  to  Thomas  Style  and  Sir  Thomas 
Barnardiston  were  contingent,  because  the  preceding  limitation 
to  the  issue  of  Evers  Armyn  was  a  contingent  fee  ;  and  the  Court 
took  the  distinction,  that  where  the  mean  estates  are  for  life,  or 
in  tail,  the  last  remainder  may,  if  it  be  to  a  person  in  esse,  vest ; 
but  that  no  remainder  after  a  limitation  in  fee  can  be  vested,  (a) 

58.  In  all  cases  where  the  first  contingent  remainder  is  in  fee, 
or  where  there  are  concurrent  remainders,  if  the  first  remainder 
becomes  vested,  all  the  subsequent  remainders  become  void;  for 
then  they  become  remainders  expectant  on  the  determination  of 
an  estate  in  fee  simple,  or  concurrent  remainders.1 

59.  Thus,  in  a  case  cited  by  Mr.  Justice  Buller,  where  the  de- 
vise was  to  G.  Pinnock  for  life,  remainder  to  her  first  and  other 
sons  in  tail  general,  and  for  default  of  such  issue  male,  remainder 
over ;  and  it  was  contended  at  the  bar,  that  the  word  male  might 
be  rejected.  But  the  Court  said  they  could  not  do  it ;  but  held 
that  the  remainder  over  was  a  contingent  devise,  only  on  the 
event  of  there  never  being  a  son ;  and  if  there  were  a  son  ever 
born,  though  he  died,  the  remainder  over  was  void.  In  that  case 
a  son  was  born,  who  died  during  the  life  of  G.  Pinnock,  on  the 
birth  of  whom  the  estate  vested  in  him,  and  the  limitation  over 
was  void,  (b) 

60.  It  seems,  however,  that  a  contingent  determinable  fee,  de- 
vised in  trust  for  some  special  purpose,  will  not  prevent  a  subse- 
quent limitation  to  a  person  in  esse  from  being  vested. 

61.  Sir  W.  Dodwell  devised  all  his  estates  to  his  daughter  for 
life,  remainder  to  trustees,  to  preserve,  &c,  remainder  to  her  first 
and  other  sons  in  tail.  In  case  his  said  daughter  should  die 
without  issue  of  her  body  living  at  her  decease,  then  he  devised 
his  estates  to  trustees  and  their  heirs,  until  his  cousin,  Sir  H. 

(a)  Ante,  §  50.     1  Ld.  Raym.  208. 

(b)  Keene  v.  Dickson,  3  Term  E.  495.    1  Bos.  &  Pul.  254,  note. 


1  Where  two  or  more  contingent  estates  in  fee  are  limited,  after  an  estate  for  life,  the 
rule  seems  to  he,  that  where  both  limitations  are  to  take  effect,  the  latter  can  do  so 
only  as  an  executory  devise  ;  but  where  both  are  limited  alternately,  on  the  same  event, 
by  the  happening  of  which  one  is  to  vest,  in  exclusion  of  the  other,  then  both  are  con- 
tingent remainders.     Dunwoodie  v.  Read,  3  S.  &  R.  452,  per  Gibson,  J. 


Title  XVI.     Remainder.     Oh.  I.  5.  61—65.  723 

Nelthorpe,  should  attain  his  age  of  twenty-one  years  ;  to  whom  he 
devised  all  his  estates,  after  he  attained  his  age  of  twenty- 
one  years,  for  life,  remainder  *  to  his  first  and  other  *  221 
sons  in  tail  male ;  in  default  of  such  issue,  or  in  case  the 
said  Sir  H.  N.  should  happen  to  die  before  he  attained  his  age 
of  twenty-one  years,  and  without  issue,  then  to  S.  Lethulier 
for  life,  &c. 

Lord  Hardwicke  held,  that  the  contingency  of  the  daughter's 
dying  without  issue  living  at  her  death,  affected  only  the  estate 
limited  to  trustees,  until  Sir  H.  N.  should  attain  twenty-one ; 
that  this  limitation  to  trustees  was  not  an  absolute  fee,  as  was 
contended,  but  a  determinable  fee  ;  that  the  estate  limited  to  Sir 
H.  N.  was  only  contingent  until  he  attained  twenty-one ;  that 
this  contingency  extended  to  none  of  the  subsequent  estates,  and 
therefore  the  remainders  over  to  persons  in  esse  were  vested,  (a) 

62.  It  frequently  happens  that  estates  are  subject  to  a  power  of 
appointment  in  the  first  taker,  with  remainders  over  in  default  of 
such  appointment.  And  it  is  now  settled  that  such  a  power  does 
not  suspend  the  effect  of  the  subsequent  limitations,  or  keep  them 
in  contingency,  (b) 

63.  As  to  the  cases  wherein  a  condition  annexed  to  a  preceding 
estate  is,  or  is  not,  considered  as  a  condition  precedent,  to  give 
effect  to  the  ulterior  limitations,  such  cases  may  be  distinguished 
into  three  classes  :  1.  Limitations  after  a  preceding  estate  which 
is  made  to  depend  on  a  contingency  that  never  takes  effect. 
2.  Limitations  over  upon  a  conditional  contingent  determination 
of  a  preceding  estate,  where  such  preceding  estate  never  takes 
effect  at  all.  3.  Limitations  over  upon  the  determination  of  a 
preceding  estate  by  a  contingency  which,  though  such  preceding 
estate  takes  effect,  never  happens,  (c) 

64.  I.  The  cases  of  Napper  v.  Sanders,  and  Tracy  v.  Lethu- 
lier, (d)  appear  to  fall  under  the  first  class  in  this  distribution ; 
in  which  it  was  held  that  the  contingency  affected  only  that  es- 
tate to  which  it  was  first  annexed,  without  extending  to  the 
ulterior  limitations. 

65.  In  a  case  referred  by  the  Court  of  Chancery  to  the  Court 
of  King's  Bench,  the  facts  were :— T.   Hey  devised  all  his  real 

(a)  Tracy  v.  Lethulier,  3  Atk.  774.     Amb.  204.     Ld.  Ken.  R.  256. 
(6)  See  post,  tit.  32,  c.  13.  (c)  Fearne,  Cont.  Rem.  233. 

(d)  Ante,  §  27  &  61. 


724  Title  XVI.     Remainder.     Ch.  I.  s.  65—66. 

estates  to  trustees,  to  the  use  of  his  son  Thomas  for  life,  remain- 
der to  the  first  and  other  sons  of  Thomas  by  any  future  wife  in 
tail  male,  remainder  to  the  daughter  and  daughters  of  such  future 
wife  and  their  heirs,  as  tenants  in  common ;  provided,  that  if  his 
son  should  marry  any  woman  related  to  his  then  wife,  all 
222*  and  every  the  *  above  uses,  so  far  as  the  same  related  to 
the  issue  of  such  future  marriage,  should  cease  and  be 
void  ;  and  the  said  trustees  should  stand  seised  of  all  the  prem- 
ises to  the  use  of  the  children  of  his  brother  John  Hey  and  their 
heirs,  as  tenants  in  common.  Soon  after  the  death  of  the  tes- 
tator, Thomas  Hey,  the  son,  died  without  issue,  and  without 
having  married  again,  leaving  Thomas  Farrin  Hey  his  heir  at 
law.  The  question  for  the  opinion  of  the  Court  was,  whether 
the  children  of  John  Hey,  the  brother  of  the  testator,  had  taken 
any  and  what  estate  in  the  case  that  had  happened. 

The  Court  certified  their  opinion  that  the  children  of  John 
Hey,  the  testator's  brother,  took  estates  tail  under  this  devise. 
The  Court  must,  therefore,  have  thought  that  the  contingency  of 
the  son's  marrying  again,  &c,  was  confined  to  the  estates  limited 
to  his  future  issue,  (a) 

66.  In  another  case  referred  by  the  Court  of  Chancery  to  the 
Court  of  King's  Bench,  the  facts  were  : — Edward  Bushby,  re- 
citing that  he  was  desirous  to  provide  for  his  sisters,  but  con- 
sidering that  his  sister  M.  S.  was  already  well  provided  for 
during  the  life  of  her  husband,  devised  all  his  estates  in  the  city 
of  Oxford,  &c,  to  trustees,  in  trust  that  they  should,  during  the 
life  of  M.  S.,  pay  the  rents  and  profits  to  the  testator's  sisters, 
E.  B.  and  M.  B.,  their  heirs  and  assigns  ;  and  from  and  after  the 
decease  of  the  husband  of  M.  S.,  in  case  M.  S.  should  be  then 
living,  in  trust,  as  to  one  third  part,  to  the  use  of  the  said  M.  S. 
for  her  life  ;  and  as  to  another  third  part,  to  his  sister  E.  B.  for 
life  ;  and  as  to  the  remaining  third  part,  to  his  sister  M.  B.  for 
life ;  with  several  remainders  to  their  first  and  other  sons  in  tail 
male,  remainder  to  their  daughters  as  tenants  in  common,  with 
cross  remainders  between  their  sisters ;  remainder  over  to  J.  S. 
Horton  in  tail,  with  several  remainders  over.  The  testator's  sis- 
ter, M.  S.,  died  in  the  lifetime  of  her  husband ;  and  the  principal 
question  was,  whether  the  condition   of   M.  S.'s  surviving  her 

(«)  Bradford  v.  Foley,  1  Doug.  53. 


Title  XVI.     Remainder.     Ch.  I.  s.  66—69.  725 

husband,  was  merely  confined  to  the  life-estate,  or  was  to  extend 
to  all  the  subsequent  limitations. 

The  Court  certified  their  opinion  that  the  remainder  to  J.  S. 
Horton  was  good.  They,  therefore,  must  have  held,  that  the 
condition  of  the  married  sister's  surviving  her  husband,  did  not 
extend  to  any  of  the  limitations  subsequent  to  her  estate  for 
life,  (a) 

*  67.  The  construction  in  these  cases,  as  to  the  restric-  *  223 
tion  of  the  contingency  to  the  estate  first  hinged  upon  it, 
appears  to  depend  on  the  testator's  apparent  intention  not  to  ex- 
tend it  further ;  for  wherever  there  is  no  apparent  distinction  in 
view,  in  this  respect,  between  such  estate  and  those  that  follow 
it,  the  contingency,  it  seems,  will  equally  affect  the  whole  ulterior 
train  of  limitations.  (6) 

68.  Thomas  Hooker  devised  lands  to  his  son  William,  and  the 
heirs  of  his  body ;  and  if  his  said  son  should  die  without  issue 
of  his  body,  and  the  testator's  wife,  Alice,  should  survive  his  son, 
then  that  she  should  enjoy  the  premises  for  her  life ;  after  her 
decease  they  should  be  enjoyed  by  the  testator's  sister,  Mary 
Stratton,  for  her  life ;  after  her  decease,  (the  testator's  son  Wil- 
liam being  dead  without  issue,  as  aforesaid,)  then  the  testator 
devised  the  premises  to  the  lessor  of  the  plaintiff.  The  testator's 
wife  did  not  survive  his  son,  but  died  before  him. 

Upon  a  question  whether  the  ulterior  devise  over  had  not 
failed  by  the  wife's  death  in  the  son's  lifetime,  a  case  was  made 
by  consent,  for  the  determination  of  the  Judge  (Reynolds)  who 
tried  it,  whose  opinion  was,  that  the  remainder  limited  by  the 
will  was  contingent,  depending  on  the  death  of  the  son  without 
issue  in  the  lifetime  of  the  testator's  wife  ;  and  as  that  contin- 
gency never  happened,  the  remainder  which  depended  thereon, 
could  never  arise.  The  Judge  appears  to  have  laid  much  stress 
on  the  words — "  The  testator's  son  being  then  dead  without 
issue  as  aforesaid,"  annexed  to  the  remainder  after  the  wife's 
decease,  as  equivalent  to  a  repetition  of  the  contingency  first 
expressed,  of  the  son's  dying  without  issiie,  the  wife  then 
living,  (c) 

69.  Lands  were  devised  to  trustees,  upon  trust,  out  of  the 

(a)  Horton  v.  Whitaker,  1  Term  R.  346.  (b)  Fearne,  Cont.  Rem.  235. 

(c)  Davis  v.  Norton,  2  P.  Wms.  390. 

61* 


726  Title  XVI.     Remainder.     Ch.  I.  s.  69—71. 

rents  to  pay  £20  annually  to  the  testator's  daughter  for  life  ;  to 
pay  the  residue  of  the  rents,  and  the  whole,  after  her  decease,  to 
her  husband  for  his  life.  If  he  should  happen  to  survive  her 
husband,  then  to  stand  seised  of  all  the  lands,  upon  the  trusts 
after  mentioned,  viz.  to  his  said  daughter  for  life,  then  to  her  son 
H.  and  the  heirs  of  his  bod)'-,  remainder  to  the  heirs  of  the  body 
of  her  husband  by  her ;  remainder  to  the  heirs  of  her  body  by 
any  other  husband ;  remainder  to  her  husband  and  his  heirs 
forever.  The  testator's  daughter  died  in  the  lifetime  of  her 
husband. 

It  was  held  that  the  limitations  over  should  not  take 
224*  effect;  for  *that  the  contingency  was  not  confined  to  her 
life-estate,  but  extended  to  all  the  subsequent  limitations  ; 
the  Court  not  finding  upon  the  whole  will  sufficient  to  gather  a 
different  intent,  so  as  to  warrant  them  in  supplying  the  omitted 
words,  (a) 

70.  Mr.  Fearne  observes,  that  in  this  case  the  contingency 
itself  was  expressly,  by  the  words  of  the  will,  extended  to,  and 
equally  connected  with,  all  the  subsequent  limitations ;  for  the 
trustees  were,  in  that  event,  to  stand  seised  of  the  lands  to  the 
several  uses,  intents,  and  purposes,  in  the  will  after  mentioned ; 
which  uses  included  as  well  the  limitations  to  the  wife  for  life,  as 
those  following  it ;  so  that  there  was  no  particular  connection  of 
the  condition  with  her  estate  more  than  with  any  of  the  rest,  (b) 

71.  II.  With  respect  to  limitations  over  upon  a  conditional 
determination  of  a  preceding  estate,  where  such  preceding  estate 
never  takes  effect  at  all. —  The  first  case  was  upon  a  devise  to 
trustees  for  eleven  years,  remainder  to  the  first  and  other  sons  of 
A  successively  in  tail  male,  provided  they  should  take  the  testa- 
tor's surname.  In  case  they  or  their  heirs  should  refuse  to  take 
the  testator's  surname,  or  die  without  issue,  then  he  devised  his 
land  to  the  first  son  of  B  in  tail  male,  provided  he  took  his  sur- 
name ;  if  he  refused,  or  died  without  issue,  then  to  the  right 
heirs  of  the  devisor.  A  died  without  having  had  any  son;  B 
had  a  son  at  the  time  of  the  devise. 

The  Court  did  not  agree  as  to  the  validity  of  the  devise  to  the 
first  son,  after  a  term  of  years,  without  any  preceding  freehold 
to  support  it ;  but  resolved  that  the  subsequent  limitation  to  the 

(«)  Doe  !•.  Shippard,  1  Doug.  75.  (b)  Feame,  Cont.  Rem.  p.  236. 


Title  XVI.     Remainder.     Ch.  I.  s.  71—75.  727 

first  son  of  B,  who  was  then  in  esse  and  capable,  took  effect ; 
that  the  preceding  limitation  to  the  first  son  of  A,  or  the  con- 
dition thereto  annexed,  did  not  operate  as  a  precedent  condition, 
which  must  happen,  to  give  effect  to  the  subsequent  limitation  to 
the  son  of  B,  but  was  only  a  precedent  estate,  attended  with 
such  a  limitation,  (a) 

72.  Lord  Hardwicke  was  of  the  same  opinion;  and  has  said, — 
"  I  know  no  case  of  a  remainder  or  conditional  limitation  over  of 
a  real  estate,  whether  by  way  of  particular  estate,  so  as  to  leave 
a  proper  remainder,  or  to  defeat  an  absolute  fee  before,  by  a  con- 
ditional limitation ;  but  if  the  precedent  limitation,  by  what 
means  soever,  is  out  of  the  case,  the  subsequent  limitation  takes 
place."  (b) 

73.  As  most  of  the  cases  which  occur  on  this  point  are 
cases  *  where  the  whole  fee  was  first  limited,  the  further  *225 
consideration  of  them  will  be  postponed  to  Executory  De- 
vises ;  (c)  only  observing  in  this  place,  that  if  such  a  conditional 
limitation  is  not  defeated  by  the  falling  of  the  preceding  estate,  in 
those  cases  wherein  the  whole  estate  is  first  limited,  a  fortiori  it 
should  not  be  defeated  in  the  cases  where  the  whole  fee  is  not  at 
first  limited  ;  but  the  remainder,  though  conditional,  includes  the 
residue  of  the  estate,  not  before  otherwise  disposed  of. 

74.  III.  As  to  cases  of  the  third  class,  it  may  be  observed,  that 
although  where  a  remainder  is  limited  to  take  effect  on  a  condi- 
tion annexed  to  a  preceding  estate,  and  that  preceding  estate  fails, 
it  appears  that  the  remainder  shall  nevertheless  take  place ;  yet 
where  such  preceding  particular  estate  takes  place,  and  the  con- 
dition is  not  performed,  the  remainder,  it  has  been  held,  will  not 
take  effect  at  the  expiration  of  such  preceding  estate,  unless 
in  those  cases  where  the  apparent  general  intention  of  the  testa- 
tor calls  for  it.  (d) 

75.  It  sometimes  happens  that  a  remainder  is  limited  in  ivords 
which  seem  to  import  a  contingency,  although  in  fact  they  mean 
no  more  than  would  have  been  implied  without  them ;  or  do  not 
amount  to  a  condition  precedent,  but  only  denote  the  time  when 
the  remainder  is  to  vest  in  possession,  (e) 

(a)  Scatterwood  v.  Edge,  1  Salk.  229.     Cro.  Jac.  592.  (6)  2  Ves.  422. 

(c)    Tit.  38,  c.  17.  (d)  Fearne,  Cont.  Rem.  238. 

(e)  Fearne,  Cont.  Rem.  240. 


728  Title  XVI.     Remainder.     Ch.  I.  s.  76—78. 

76.  T.  Boraston  devised  lands  to  A  and  B  for  eight  years, 
remainder  to  his  executors  until  such  time  as  Hugh  Boraston 
should  accomplish  his  full  age  of  twenty-one  years ;  and  when 
the  said  Hugh  should  come  to  his  age  of  twenty-one  years,  then 
the  testator  declared  his  will  to  be,  that  he  should  enjoy  the 
same  to  him  and  his  heirs  forever.  Hugh  Boraston  died  under 
twenty-one.  It  was  contended  that  the  remainder  did  not  vest 
in  him,  because  he  did  not  live  to  attain  the  age  of  twenty-one ; 
for  as  he  was  not  to  have  it  until  twenty-one,  it  was  contingent 
on  that  event ;  it  being  uncertain  whether  he  ever  would  attain 
that  age.  But  it  was  resolved  that  the  case  was  no  other  in  effect 
than  a  devise  of  lands  by  a  person  to  executors,  until  his  son  at- 
tained the  age  of  twenty-one  years,  remainder  to  his  son  in  fee ; 
and  that  the  adverbs  of  time  when  and  then  did  not  make  any 
thing  necessary  to  precede  the  settling  of  the  remainder,  any 
more  than  in  the  common  case  of  a  lease  for  life  or  years,  and 
after  the  decease  of  the  lessee,  or  the  end  of  the  term,  remainder 

to  another ;  in  which  case  the  remainder  vests  presently. 
226  *    For  *  when  these  adverbs  refer  to  a  thing  which  must  of 

necessity  happen,  they  make  no  contingency ;  for  it  is 
certain  that  every  man  must  die,  and  every  term  will  end ;  so 
that  these  adverbs  when  and  then  are  demonstrations  of  the  time 
when  the  remainder  shall  take  effect  in  possession,  not  when  the 
remainder  shall  vest,  (a) 

77.  A  having  two  sons,  B  and  C,  levied  a  fine  to  the  use  of 
himself  for  life,  remainder  to  B  his  eldest  son  for  life,  after  to 
the  first  son  of  the  body  of  B  and  his  heirs  male,  and  so  to  four 
sons  successively  in  tail ;  and  if  it  fortune  the  said  fourth  son  to 
die  without  issue  male,  then  to  remain  to  C.  A  died ;  B  died 
without  issue  male,  leaving  a  daughter.  Adjudged  that  the  use 
vested  in  C,  though  B  had  no  issue  male ;  and  that  B's  having 
issue  male  was  no  condition  precedent,  (b) 

78.  Devise  to  A  for  life,  then  to  B  in  tail,  "  and  if  my  three 
daughters  or  either  of  them  overlive  A  and  B,  then  they  to  have 
it ;  and  after  them  I  give  it  to  J.  W."  &c.  B  died,  and  two  of 
the  daughters  died,  living  A.  Then  A  died.  The  question  was, 
if  this  was  a  contingent  estate  ;  and  if  so,  whether  the  contin- 
gency were  performed  by  two  of  the  daughters  dying  in  the  life- 

(a)  Boraston's  case,  3  Kep.  19.    1  P.  Wras.  170.  (b)  Holcroft's  case,  Moo.  486. 


Title  XVI.     Remainder.     Ch.  I.  s.  78—81.  729 

time  of  B.  Resolved,  that  it  was  not  a  contingent  limitation, 
but  only  an  expression  when  the  remainder  should  commence, 
that  is,  take  effect  in  possession,  (a) 

79.  Walter    Thomas  having  four  children,  devised  in   these 

words : "  The  house  wherein  John  Taylor  dwelleth  I  give  to 

my  son  John.  Item,  I  bequeathe  to  my  daughter  Grace  that  part 
and  interest  that  I  have  in  the  house  at  Palace  Gate.  Item,  I 
give  to  my  daughter  Elizabeth  that  garden,  &c.  Item,  I  give  to 
my  son  William  all  the  houses  which  I  have  in  St.  Martin's  Lane. 
Item,  my  will  is,  that  when  either  of  my  forementioned  children 
shall  depart  out  of  this  life,  that  then  the  houses,  lands,  goods, 
and  whatsoever  I  have  now  given  them,  shall  be  equally  divided 
betwixt  them  that  are  living." 

The  eldest  son  died.  It  was  contended  that  this  limitation 
over  to  the  children  then  living,  was  a  contingent  remainder  to 
the  survivors,  depending  on  the  particular  estates  for  life  to  the 
children  ;  that  the  eldest  son's  estate  for  life  in  the  house  devised 
to  him  was  merged  in  the  fee  which  descended  to  him  on  his 
father's  decease ;  and  consequently  the  contingent  remainder 
to  the  survivors  in  this  house  was  thereby  destroyed.  On  the 
other  hand  it  was  insisted,  and  so  adjudged  by  the 
*  Court,  that  this  was  not  a  contingent,  but  a  vested  re-^  *  227 
mainder ;  that  every  child  took  a  particular  estate  in  his 
or  her  house,  for  life,  with  a  vested  remainder  to  the  others,  for 
their  lives,  (b) 

80.  A  man  devised  certain  lands  to  his  wife,  till  his  son  and 
heir  should  attain  his  age  of  twenty-one  years.  When  his  son 
should  attain  that  age,  then  to  his  son  and  his  heirs.  The  son 
died  at  the  age  of  thirteen  years.  It  was  held  by  Lord  Harcourt, 
that  the  remainder  vested  presently  in  the  son  upon  the  testator's 
death,  and  was  not  to  expect  till  the  contingency  of  his  attaining 
twenty-one  ;  for  in  that  case  it  never  would  have  vested,  (c) 

81.  A  person  devised  all  his  estates  to  trustees,  in  trust  to  lay 
out  the  rents  and  profits  in  the  maintenance  and  education  of  the 
two  sons  of  his  sister,  during  their  minorities ;  and  when  and 
as  they  should  respectively  attain  their  ages  of  twenty-one  years, 

(a)  Webb  v.  Hearing,  Cro.  Jac.  415. 

(b)  Fortescue  v.  Abbot,  Pollex.  479.     T.  Jones,  79.     Anon.  2  Vent.  365. 

(c)  Mansfield  v.  Dugard,  1  Ab.  Eq.  195. 


730  Title  XVI.     Remainder.     Ch.  I.  s.  81—82. 

then  to  the  use  and  behoof  of  the  said  sons  of  his  sister,  and 
their  heirs. 

Lord  Mansfield  said  the  question  was,  whether  the  estate  vested 
immediately  in  the  two  nephews,  upon  the  death  of  the  testator ; 
or  remained  in  contingency  till  their  respective  coming  of  age. 
He  said  he  would  lay  down  a  rule  or  two,  previous  to  his  giving 
his  particular  opinion  on  the  case.  1.  Whenever  the  whole  prop- 
erty is  devised,  with  a  particular  interest  given  out  of  it,  it 
operates  by  way  of  exception  out  of  the  absolute  property.  2. 
Where  an  absolute  property  is  given,  and  a  particular  interest  is 
given  in  the  mean  time ;  as,  until  the  devisee  shall  come  of  age, 
&c,  then  to  him,  &c. ;  the  rule  is,  that  that  shall  not  operate  as  a 
condition  precedent,  but  as  a  description  of  the  time  when  the 
remainder-man  is  to  take  in  possession.  To  this  purpose  was 
Boraston's  case,  where  this  doctrine  was  fully  laid  down  and 
explained.  Upon  the  whole,  he  held  that  the  nephews  took  an 
immediate  gift,  with  a  trust  to  be  executed  for  their  benefit,  dur- 
ing their  minority,  (a) 

82.  M.  Lea  devised  copyhold  estates  to  T.  Lea  and  E.  John- 
son, their  heirs  and  assigns,  to  hold  to  them  and  their  heirs  until 
JVL  Lea,  second  son  of  his  nephew  Thomas,  then  an  infant, 
should  attain  the  age  of  twenty-four  years  ;  on  condition  that  he 
should,  out  of  the  rents  and  profits,  keep  the  buildings  in  repair. 
Item,  he  devised  to  M.  Lea,  his  great  nephew,  and  to  his  heirs 
and  assigns  forever,  when  and  so  soon  as  he  should  attain 
228  *  his  age  *  of  twenty-four  years,  the  premises  in  question  ; 
and  directed  the  trustees  to  surrender  the  premises  ac- 
cordingly. M.  Lea  attained  the  age  of  twenty-one  :  but  died 
under  twenty-four  intestate,  and  without  issue.  It  was  con- 
tended that  the  words,  when  and  so  soon  operated  as  a  condition 
precedent  to  M.  Lea's  taking  any  interest  under  the  devise ;  and 
the  event  of  his  attaining  the  age  of  twenty-four  not  having  hap- 
pened, the  condition  was  defeated ;  consequently  this  heir  at  law 
could  take  nothing;  these  words  having  the  same  meaning  as 
if  M.  Lea  shall  attain  the  age  of  twenty-four.  And  it  was  ex- 
pressly determined  to  raise  a  condition  precedent  in  the  case  of 
Brownswords  v.  Edwards. 

Lord   Kenyon  observed,  that  the  words  in   Brownswords  v. 

(a)  Goodtitle  v.  Whitby,  1  Burr.  228.    8  Rep.  95,  b.    Ante,  §  76. 


Title  XVI.     Remainder.     Ch.  I.  s.  82—85.  731 

Edwards,  were  very  different  from  the  present ;  there  it  was, 
if  he  should  attain  the  age  of  twenty-one.  But  the  words  in  this 
case  only  denoted  the  time  when  the  beneficial  interest  was  to 
accrue.  He  cited  Boraston's  case,  and  Goodtitle  and  Whitby ; 
and  concluded  that  the  words  in  this  case  could  not  operate  as  a 
condition  precedent,  but  as  giving  an  absolute  interest  in  fee,  and 
denoting  the  time  when  the  remainder  was  to  take  effect  in  pos- 
session; and  therefore  that  the  estate  descended  to  the  heir  at 
law  of  M.  Lea.  (a) 

83.  There  are  some  cases  where  the  contingency  upon  which 
an  estate  is  limited  has  been  considered  as  a  condition  subsequent ; 
so  that  the  estate  becomes  vested  immediately,  subject  to  be  de- 
feated by  the  condition,  when  it  happens. 

84.  John  Hammond  surrendered  the  premises  in  question  to 
the  use  of  himself  for  life ;  after  his  decease  to  the  use  of  John 
Hammond  the  younger,  and  his  heirs  and  assigns  forever,  if  it 
should  happen  that  the  aforesaid  John  Hammond  the  younger, 
should  live  until  he  attained  the  age  of  twenty-one  years ;  pro- 
vided always,  and  under  the  condition  nevertheless,  that  if  it 
should  happen  that  the  aforesaid  J.  H.  the  younger,  should  die 
before  he  attain  the  age  of  twenty-one  years,  then  to  remain  to 
the  use  of  the  surrenderor  and  his  heirs. 

It  was  resolved,  that  this  was  a  condition  subsequent ;  and 
that  the  estate  vested  immediately  in  J.  H.  subject  to  be  divested 
if  he  died  under  the  age  of  twenty-one  years,  (b) 

85.  A  testator  devised  all  his  real  estate  to  E.  D.  and  J.  R.  for 
their  lives  successively  ;  and  after  the  decease  of  the  longer  liver 
of  them,  to  J.  D.  Bromfield,  if  he  lived  to  attain  the  age 

of  twenty-one  *  years;  but  in  case  he  died  before  he  *229 
attained  that  age,  and  his  brother  Charles  Bromfield 
should  survive  him,  in  that  case  he  gave  his  real  estate  to 
Charles  Bromfield,  his  brother,  if  he  lived  to  attain  the  age  of 
twenty-one  years,  but  not  otherwise ;  but  in  case  both  the  above- 
mentioned  boys  died  before  either  of  them  attained  the  age  of 
twenty-one  years,  then  over.  E.  D.  and  J.  R.  died  while  J.  D.  Brom- 
field was  under  the  age  of  twenty-one  years.  The  cause  com- 
ing on  at  the  Rolls,  his  Honor  ordered  a  case  to  be  made  for  the 

(a)  Doe  v.  Lea,  3  Term  R.  41.     Vide  tit.  38,  c.  20. 

(b)  Edwards  v.  Hammond,  from  the  Record,  1  Bos.  &  Pul.  N.  R.  313. 


732  Title  XVI.     Remainder.     Ch.  I.  s.  85—86. 

opinion  of  the  Judges  of  the  Common  Pleas,  upon  the  question 
whether  Mr.  Bromfield,  in  the  events  which  had  happened,  took 
any  and  what  estate  or  interest  in  the  freehold  or  copyhold 
estates  of  the  testator. 

The  Judges  certified  that  Mr.  Bromfield  took  a  vested  estate 
in  fee  simple  in  the  freehold  and  copyhold  lands,  determinable 
on  the  event  of  his  dying  under  twenty-one.  The  Master  of  the 
Rolls  decreed  in  conformity  to  this  certificate,  (a)  On  an  appeal 
to  Lord  Erskine,  the  decree  was  affirmed  by  him  ;  and  afterwards 
by  the  House  of  Lords,  (b) 

86.  A  testatrix  devised  all  her  freehold  estates  to  her  nephew 
and  heir  at  law,  for  his  life  ;  and  on  his  decease,  "  to  and  amongst 
his  children  lawfully  begotten,  equally  at  the  age  of  twenty-one, 
and  their  heirs  as  tenants  in  common  ;  but  if  only  one  child 
shall  live  to  attain  such  age,  to  him  or  her,  and  his  or  her  heirs, 
at  his  or  her  age  of  twenty-one.  And  in  case  my  said  nephew 
shall  die  without  lawful  issue,  or  such  lawful  issue  shall  die 
before  twenty-one,"  then  over.  It  was  held  by  the  Court  of 
King's  Bench,  and  by  the  House  of  Lords,  that  the  children  of 
the  nephew  took  a  vested  remainder,  (c)  f 

(a)  Bromfield  v.  Crowther,  Idem.    Doe  v.  Moore,  14  East,  601.     Vide  tit.  38,  c.  16. 

(b)  Printed  cases,  1811. 

(c)  Doe  v.  Nowel!,  1  M.  &  S.  327.    Eandoll  r.  Doe,  5  Dow,  202. 


t  [A  remainder  will  not  be  construed  to  be  contingent,  where  it  can  be  deemed 
vested.  Doe  v.  Perryn,  3  T.  E.  494  ;  Driver  v.  Frank,  3  M.  &  S.  25 ;  6  Price,  41.  And 
a  vested  remainder  will  not  be  divested,  unless  there  be  a  special  provision,  or  a  clear 
intention  to  be  collected  from  the  language  of  the  instrument.  Driver  v.  Frank,  supra. 
Note  to  former  edition.]  [Johnson  v.  Valentine,  4  Sandf.  Sup.  Ct.  36 ;  Den  v.  De- 
marest,  1  New  Jersey,  525.] 


733 


CHAP.  II. 

EVENT    UPON    WHICH   A    CONTINGENT    REMAINDER    MAY   BE    LIMITED. 


Sect.     1.  It  must  be  a  Legal  Ac'. 

4.  And  Potentia  Propinqua. 
9.  Not  repugnant  to  any  Rule 

of  Law. 
10.  Nor  contrariant  to  itself. 


Sect.  16.  It  must  not  operate  to  abridge 
the  particular  Estate. 
29.   Conditional  Limitations. 
35.  Estates  may  be  enlarged  on 

Condition. 


Section  1.  The  uncertainty  of  the  event  on  which  a  remain- 
der is  limited,  is  in  some  cases  the  circumstance  which  makes  it 
contingent.  But  a*  limitation,  intended  as  a  contingent  remain- 
der, may  fail  of  taking  effect  on  account  of  the  following  circum- 
stances respecting  the  contingency  upon  which  it  is  limited  to 
take  effect. 

2.  Firsts  the  contingent  event  must  be  a  legal,  and  not  an 
illegal  act ;  for  Lord  Coke  says  : — "  The  law  will  never  adjudge 
a  grant  good  by  reason  of  a  possibility  or  expectation  of  a  thing 
which  is  against  law ;  for  it  is  potentia  remotissima  et  •  vana, 
which,  by  intendment  of  law,  nunquam  venit  in  actum."  (a) 

3.  Hence  it  has  been  determined,  that  a  limitation  to  a  bastard 
(not  yet  in  esse)  is  void.  Thus,  where  a  man  made  a  feoffment 
to  the  use  of  himself  for  life,  remainder  to  the  use  of  such  issue 
of  the  body  of  Margaret  Lloyd  as  should  by  common  supposition 
be  adjudged  to  be  begotten  by  the  feoffor,  whether  legitimate  or 
illegitimate.  Resolved,  that  the  remainder  was  void,  because  the 
law  doth  not  favor  such  a  generation.  (6) 

4.  Secondly,  the  possibility  upon  which  a  remainder  is  to  de- 
pend must  be  a  common  possibility,  or  potentia  propinqua;  as 
death,  or  death  without  issue,  or  coverture ;  for  potentia  est 
duplex,  remota  et  propinqua.  Hence  it  has  been  determined, 
that  a  remainder  to  a  corporation,  which  is  not  in  being  at  the 
time  of  the  limitation,  is  void,  although  such  be  erected  after, 

Co)  3  Eep.  51,  b.  (6)-Blodwell  v.  Edwards,  Cro.  Eliz.  509. 

VOL.    I.  62 


734  Title  XVI.     Remainder.     Ch.  II.  s.  4—7. 

during  the  particular  estate ;  for  at  the  time  of  the  limitation  it 

was  potentia  remota.  (a)  ] 
231  *        5.  *  It  is  different  if  during  the  vacation  of  the  mayor- 
alty of  D.  a  lease  for  life  be  made,  remainder  to  the  mayor 
and  commonalty  of  D.     The  remainder  is  good,  if  there  be  a 
mayor  of  D.  elected  during  the  estate  for  life,  (b) 

6.  It  is  laid  down  in  Cholmley's  case,  that  if  a  lease  be  made 
for  life,  remainder  to  the  right  heirs  of  J.  S.,  this  is  good ;  for 
by  common  possibility,  J.  S.  may  die  during  the  life  of  the  tenant 
for  life.  But  if  at  the  time  of  the  limitation  of  the  remainder 
there  be  no  such  person  as  J.  S.,  but  during  the  life  of  the  tenant 
for  life  J.  S.  be  born  and  die,  his  heir  shall  at  no  time  take, 
because  the  possibility  on  which  the  remainder  is  to  take  effect 
is  too  remote ;  for  it  amounts  to  the  concurrence  of  two  several 
contingencies,  not  independent  and  collateral,  but  the  one  requir- 
ing the  previous  existence  of  the  other,  and  yet  not  necessarily 
arising  out  of  it ;  viz.  first,  that  such  a  person  as  J.  S.  should  be 
born,  which  is  very  uncertain ;  and  secondly,  that  he  should  also 
die  ^during  the  particular  estate,  which  is  another  uncertainty 
grafted  upon  the  former.  This  is  called  a  possibility  upon  a 
possibility,  which,  Lord  Coke  says,  is  never  admitted  by  intend- 
ment of  law.  (c) 

7.  Upon  the  same  ground,  says  Mr.  Fearne,  arises  the  distinc- 
tion between  a  remainder  limited  by  a  general  description,  and 
one  limited  by  a  particular  name  to  a  person  not  in  esse.  In  the 
first  case  the  remainder  is  good,  as  a  limitation  to  the  right  heirs 
of  J.  D.  who  is  alive ;  or  primogenito  filio  of  B.  who  has  no  son 
then  born ;  but  in  the  other  case  the  remainder  is  void ;  as  if  it 
be  limited  to  G.,  son  of  D. ;  in  that  case,  if  D.  hath  not  a  son 
named  G.  at  the  time  of  the  limitation,  the  law  will  not  expect 
he  should  afterwards  have  a  son  so  named ;  because  it  amounts 
to  a  possibility  upon  a  possibility ;  viz.  first,  that  he  should  have 
a  son  ;  and,  secondly,  that  such  son  should  be  named  G.  (d) 

(«)  1  Inst.  25,  b.     184,  a.      2  Rep.  51,  a.  (b)  1  Inst.  264,  a. 

(c)  2  Eep.  51,  b.     Fearne,  Cont.  Rem.  251.     1  Inst.  25,  b.  184,  a. 

(d)  Fearne,  Cont.  Rem.  252. 

1  In  New  York,  it  is  provided  by  statute,  that  no  future  estate,  otherwise  valid,  shall 
be  void,  on  the  ground  of  the  probability  or  improbability  of  the  contingency  on  which 
it  is  limited  to  take  effect.  N.  York,  Rev.  St.  Vol.  II.  p.  11,  §  26,  3d.  cd.  So.  in  In- 
diana, Rev.  St.  1843,  c.  28,  §  62,  p.  425. 


Title  XVI.     Remainder.     Ch.  II.  s.  8—11.  735 

8.  A  case  is  cited  from  the  year  book  10  Edw.  III.  in  Cholmley's 
case,  where,  upon  a  fine  levied  to  R.,  he  granted  and  rendered 
the  tenements  to  one  J.  and  Florence  his  wife,  for  their  lives, 
remainder  to  G.  son  of  J.  in  tail,  remainder  to  the  right  heirs  of 
J. ;  and  in  truth  at  the  time  of  the  fine  levied,  J.  had  not  any 
son  named  G.,  but  afterwards  he  had  a  son  named  G.,  and  died. 
In  a  praecipe  against  Florence,  it  was  adjudged  that  G.  should 
not  take  the  remainder  in  tail,  because  he  was  not  born 

at  the*  *  time  of  the  fine  levied,  but  long  after  ;  wherefore    *  232 
another,  who  was  right  heir  to  J.,  by  judgment  of  the 
Court,  was  received,  (a) 

This  determination  was  founded  on  the  principle  that  the  law 
would  not  expect  that  J.  and  F.  should  have  a  son  so  named? 
because  it  amounted  to  a  possibility  upon  a  possibility ;  first, 
that  he  should  have  a  son  ;  and,  secondly,  that  such  son  should 
be  named  G. 

9.  It  has  been  held  that  a  condition  or  limitation  must  deter- 
mine or  avoid  the  whole  of  the  estate  to  which  it  is  annexed  5 
and  not  determine  it  in  part  only,  and  leave  it  good  for  the 
residue.  Upon  this  principle  it  has  been  adjudged,  that  a  proviso 
to  make  the  estate  of  a  tenant  in  tail  cease  during  his  life,  was 
void.  For  although  the  whole  estate  may  be  determined  by  a 
condition,  yet  part  of  it  only,  viz.  during  the  life  of  the  tenant 
in  tail,  shall  not;  in  which  case  the  proviso  is  ineffectual,  on 
account  of  its  repugnancy  to  a  rule  of  law.  (b~) 

10.  A  condition  may  also  be  contrariant  in  itself;  as  in  the 
case  of  a  proviso  for  determining  an  estate  tail,  as  if  tenant  in 
tail  were  dead.  This  had  been  held  a  contrariant  proviso,  and 
void  on  that  account ;  because  the  death  of  a  tenant  in  tail  does 
not  determine  the  estate  tail,  but  his  death  without  issue ;  con- 
sequently, to  say  that  the  estate  shall  determine  as  if  he  were 
dead,  amounts  to  saying  that  it  shall  determine  as  it  would  do 
upon  an  event,  viz.,  the  death  of  the  tenant  in  tail,  which  event 
might  not  determine  it ;  therefore  such  a  proviso  is  contradictory, 
and  absurd  in  itself. 

11.  Thomas  Cary  devised  to  Peter  Cary  and  the  heirs  male 
of  his  body,  remainder  in  the  same  manner  to  his  other  sons  ; 
with  a  proviso,  that  if  the  said  Peter  Cary,  or  any  of  his  other 
sons,  or  any  of  the  heirs  male  of  their  bodies,  should  attempt  or 

(a)  2  Rep.  51,  b.  (b)  6  Hep.  40,  b.    4  Burr.  E.  1941'. 


736  Title  XVI.     Remainder.    Ch.  II.  s.  11— 14. 

endeavor  to  sell,  bargain,  discontinue,  &c.,  the  estate  of  such 
person  so  attempting  should  cease  and  determine,  as  if  such 
person  were  naturally  dead. 

It  was  held,  that  this  proviso  was  void,  being  against  law, 
repugnant,  and  contradictory.  Against  law,  because  the  whole 
estate  ought  to  be  defeated ;  repugnant,  because  an  estate  tail 
cannot  be  made  to  cease  as  if  the  tenant  in  tail  was  dead ;  for 
the  death  of  a  tenant  in  tail  does  not  determine  an  estate  tail, 

but  his  death  without  issue,  (a)  * 

233  *         *  12.  Sir  R.  Cholmley,  by  a  conveyance  to  uses,  limited 

his  estate  to  the  use  of  F.  Cholmley  for  life,  remainder  to 
the  use  of  H.  Cholmley  and  the  heirs  male  of  his  body,  remain- 
der over ;  with  a  proviso,  that  if  the  said  Henry  or  any  of  the 
heirs  male  of  his  body,  should  attempt  or  make  any  feoffment, 
his  estate  should  cease  as  if  he  were  dead.  The  proviso  was 
held  to  be  illegal  and  void,  (b) 

13.  S.  Corbet  covenanted  to  stand  seised  to  the  use  of  himself 
for  life,  remainder  to  his  eldest  son  Rowland  and  the  heirs  of 
his  body ;  with  a  proviso,  that  if  the  said  Rowland,  or  any  of 
the  heirs  male  of  his  body,  should  be  resolved  and  determined, 
or  advisedly  should  attempt  or  procure  any  act  or  thing  concern- 
ing any  alienation  of  the  said  premises,  by  which  any  estate  tail 
thereof  should  be  barred,  that  the  estate  to  him  limited  should 
cease,  only  in  respect  to  such  person  so  attempting  to  alien,  in 
the  same  manner  as  if  such  person  was  naturally  dead.  After 
the  death  of  S.  Corbet,  his  son  Rowland  entered,  and  suffered  a 
common  recovery ;  and  the  person  in  remainder  having  entered, 
on  the  breach  of  the  proviso,  it  was  determined  that  the  proviso 
was  repugnant,  impossible,  and  against  law ;  for  the  death  of  a 
tenant  in  tail  is  not  a  determination  of  the  estate  tail,  but  his 
death  without  issue,  (c) 

14.  So,  where  a  proviso  similar  to  that  in  the  last  case  was 
inserted  in  a  deed,  "  it  was  resolved  that  it  was  impossible  and 
repugnant  that  an  estate  tail  should  cease  as  if  the  tenant  in 
tail  was  dead,  (had  he  issue  or  not,)  for  an  estate  tail  cannot 
cease  so  long  as  successive  heirs  continue.  But  here  his  intent 
was  to  continue  the  estate  tail,  and  to  cease  it  in  respect  of  the 
party  offending  only,  and  not  as  to  any  other,  which  was  impos- 

(a)  Jermin  v.  Arscot,  1  Rep.  85,  a.    (Hawley  v.  Northampton,  8  Mass.  R.  3.) 

(6)  Cholmley  v.  Humble,  1  Rep.  86,  a.  (c)  Corbet's  Case,  1  Rep.  83,  b. 


Title  XIV.     Remainder.     Ch.  II.  5.  14—17.  737 

sible,  repugnant,  and  against  law ;  for  every  limitation  or  con- 
dition ouo-ht  to  defeat  the  whole  estate,  and  not  to  defeat  part 
of  the  estate,  and  leave  part  not  defeated  ;  and  it  could  not  make 
an  estate  to  cease  quoad  imam  personam,  and  not  quoad 
alteram,  (a) 

15.  So,  where  a  person  devised  his  estate  to  H.  K.,  and  the 
heirs  male  of  his  body,  until  such  time  as  the  said  H.  K.,  or  any 
issue  male  of  his  body,  should  effectually  and  expressly  assent, 
conclude,  do,  or  go  about  to  do,  or  make  any  act  or  acts  to  alter, 
discontinue,  or  change  his  estate  tail.     H.  K.  joined  with 

his  son  in  levying  a  fine  of  the  estate.  *  The  Court  re-  *234 
solved,  "  That  this  was  a  perpetuity  in  our  law  books, 
and  repugnant  to  the  law,  and  not  allowable  ;  for  he  may  not 
determine  an  estate  tail  by  such  a  limitation.  Nor  can  he  give 
title  to  another  to  enter,  who  is  a  stranger;  for,  by  the  fine, 
there  was  a  discontinuance  of  the  remainder,  and  a  divesting 
thereof,  so  as  he  could  not  enter ;  for  it  was  no  limitation  to 
enter,  but  after  the  effectual  going  about,  and  it  was  not  effectual 
until  the  act  was  done  ;  and  when  the  act  was  done,  the  remain- 
der was  discontinued,  and  then  he  could  not  enter.  Also,  they 
held  these  were  uncertain,  ambiguous,  and  inadequate  words,  to 
make  the  limitation  of  an  inheritance  by  the  determination 
thereof,  and,  therefore,  void  and  repugnant  to  law,  and  the  law 
would  never  give  allowance  to  it ;  wherefore  they  held  that  the 
case  was  all  one  with  the  reasons  in  the  cases  of  Sir  A.  Mildmay, 
Corbet,  fee."  (b) 

16.  The  event  or  contingency  on  which  a  remainder  is  limited 
must  not  operate  so  as  to  abridge,  defeat,  or  determine  the  par- 
ticular estate.1  This  rule  follows  of  necessity,  from  the  nature  of 
a  remainder,  as  exhibited  in  the  definition  of  it  by  Lord  Coke ; 
so  that  it  is  of  the  essence  of  a  remainder  that  it  should  wait  for, 
and  only  take  effect  in  possession,  on  the  natural  expiration  or 
determination  of  the  first  estate. 

17.  This  rule  also  follows  as  a  consequence  of  the  rule  already 
stated,  (c)  that  no  one  shall  take  advantage  of  a  condition  but  the 

<a)  Mildmay's  case,  G  Rep.  40.     Vide  tit.  13,  c.  1, 

(&)  Foy  v.  Hinde,  Cro.  Jac.  697.     Vide  Feame,  Cont.  Rem.  256.        (c)  Vide  tit.  13,  c.  2. 


'  In  New  York,  this  rule  is  abolished,  and  the  contrary  thereof  is  enacted  by  statute, 
which  provides  that  a  remainder,  so  limited,  shall  be  construed  a  conditional  limitation. 
Rev.  St.  Vol.  II.  p.  11,  §  27.     So,  in  Indiana,  Rev.  St.  1843,  ch.  28,  §  61,  p.  425. 

62* 


738  Title  XVI.     Remainder.     Ch.  II.  s.  17—21. 

party  from  whom  the  condition  moves,  that  is,  the  grantor  and 
his  heirs ;  for  if  he  or  his  heirs  take  advantage  of  a  condition,  by 
entry  or  claim,  the  livery  made  upon  the  creation  of  the  estate  is 
defeated,  and  of  course  every  estate  then  created  is  thereby  an- 
nulled and  gone.  But  the  remainder  ought  to  vest  at  the  instant 
of  the  expiration  of  the  preceding  estate,  and  remainders  are  de- 
feated by  the  entry  of  the  grantor ;  therefore  such  remainder  is 
void.  It  follows  that  a  remainder  properly  so  called,  cannot  be 
limited  to  take  effect  upon  a  condition,  which  is  to  defeat  the 
particular  estate ;  whether  such  condition  be  repugnant  to  the 
nature  of  the  estate  to  which  it  is  annexed,  or  not. 

18.  If,  therefore,  a  lease  for  life  be  made,  upon  condition  that 
if  a  stranger  pay  to  the  lessor  <£20,  then  immediately  the  land 
shall  remain  to  the  same  stranger;  this  remainder  is  void,  for  the 
tenant  for  life  ought  to  have  it  during  his  life ;  and  if  so,  during 

that  time  the  stranger  cannot  have  it,  for  he  can  take  no 
235  *     advantage  *  of  the  condition,  but  only  the  grantor  or  his 

heirs.  Had  it. been  limited  that,  if  a  stranger  pay  to  the 
lessor  <£20,  then,  after  the  death  of  the  tenant  for  life,  it  should 
remain  to  that  stranger,  it  would  have  been  a  good  remainder,  (a) 

19.  The  distinction  between  the  two  cases  is  this : — In  the 
latter,  the  remainder  is  not  to  vest  in  possession  till  after  the  de- 
termination of  the  estate  for  life,  when  it  may  vest  of  course.  In 
the  former,  it  is  limited  to  take  effect  in  possession  on 'the  per- 
formance of  a  condition,  which  is  to  defeat  the  estate  for  life ;  and 
not  to  wait  till  the  particular  estate  be  determined,  by  means 
consistent  with  the  nature  of  its  original  determination. 

20.  If  a  lease  be  made  to  two,  the  remainder  over  to  a  stranger 
in  fee,  after  the  death  of  the  first  of  them,  this  remainder  is  void ; 
because,  as  the  survivor  must  have  the  lands  for  life,  by  the  nature 
of  the  first  estate,  the  limitation  over  after  the  death  of  the  first 
of  them,  cannot  take  place  without  defeating  the  first  estate,  as 
to  the  interest  of  the  survivor,  (b)  1 

21.  Upon  the  same  principle  it  seems  that,  if  an  estate  be 
granted  to  A,  a  widow  for  life,  remainder  to  B  in  fee,  on  condi- 
tion that  A  continues  a  widow ;   if  A  marries,  the  entry  of  the 

(a)  Plowd.  29.     2  Leon.  16.  (b)  Plowd.  24. 

1  But  if  the  limitation  over  had  been  to  the  survivor,  it  would  have  been  good.  See 
post,  §  27. 


Title  XVI.     Remainder.     Ch.  II.  s.  21—25.  739 

heir  will  defeat  the  estate  to  A,  and  also  the  remainder  to  B. 
But  that,  if  an  estate  had  been  granted  to  A  durante  viduitate, 
remainder  to  B  upon  A's  marriage,  her  estate  would  determine 
by  the  nature  of  its  limitation,  and  the  remainder  to  B  would 
take  effect,  (a)  1 

22.  Here,  however,  we  are  to  observe  that,  if  land  be  leased  to 
one  for  life,  &c.,  and  if  such  a  thing  happen,  then  to  remain  to  B, 
&c.  This  shall  not  be  understood  as  intended  to  vest  in  pos- 
session immediately  upon  the  happening  of  the  condition,  and  in 
abridgment  of  the  preceding  estate;  because,  under  that  con- 
struction, the  remainder  would  be  void,  for  the  reasons  already 
given ;  but  it  shall  be  construed  to  vest  in  interest,  upon  the  hap- 
pening of  the  condition,  and  to  remain  as  a  remainder  ought  to 
do,  that  is,  so  as  to  await  the  determination  of  the  preceding 
estate,  before  it  comes  into  possession,  (b) 

23.  Thus,  where  lands  were  limited  to  husband  and  wife  for 
their  lives,  remainder  to  A,  their  son,  for  life,  if  he  should  die  in 
the  lifetime  of  the  husband  and  wife,  that  then  the  lands  should 
remain  to  B,  another  of  their  sons,  for  life.  It  was  resolved  that 
the  remainder  limited  to  B  was  good;  and  that  the  words, 

* "  If  A  should  die  in  the  lifetime  of  the  husband  and    *  236 
wife,  then  the  lands  should  remain  to  B,"  did  not  operate 
to  defeat  the  estate  limited  to  the  husband  and  wife,  but  only 
indicated  the  time  when  the  remainder  should  become  vested  in 
interest,  (c) 

24.  The  same  law  holds  with  regard  to  a  subsequent  remainder, 
limited  to  take  effect  on  a  condition  which  is  to  defeat  a  preced- 
ing remainder. 

25.  A  being  seised  in  fee,  leased  to  B  for  life,  remainder  to  C 
for  life ;  provided,  that  if  A  should  have  a  son,  who  should  live 
to  the  age  of  five  years,  the  estate  limited  to  C  should  cease,  and 
the  land  remain  to  that  son  in  tail.  It  was  determined  that  the 
estate  limited  to  the  son  was  void,  because  it  depended  on  a  con- 
dition which  operated  to  defeat  the  preceding  remainder,  (d) 

(a)  Stiver  v.  Hardy,  Cro.  Eliz.  414.    Fearne,  Gorit.  Rem.  2C2.  (&)  Ante,  c.  1. 

(c)  Colthirst  v.  Bejushin,  Plowd.  23.  (d)tCogan  v.  Cogan,  Cro.  Eliz.  360. 


1  This  case  is  better  reported  in  Poph.  99,  nom.  Sawyer  v.  Hardy.  The  lease  was  to 
a  widow  for  forty  years,  on  condition  that  if  she  continued  sole,  she  should  dwell  in  the 
house  ;  and  the  question  arose  between  her  executor  and  the  remainder-man,  she  dying 
within  the  forty  years. 


740  Title  XVI.     Remainder.     Ch.  II.  s.  26—27. 

26.  It  may  happen  that,  notwithstanding  a  contingent  limita- 
tion is  expressed  to  commence  from  a  period  eventually  anterior 
to  the  determination  of  the  particular  estate,  yet  the  nature  of 
the  case  may  be  such  as  not  to  admit  of  its  taking  effect  in  pos- 
session, in  restraint,  abridgment,  or  exclusion,  of  the  particular 
estate.  As  if  such  limitation  over  were  to  the  grantee  or  devisee 
of  the  particular  estate ;  which,  instead  of  operating  in  any 
degree  to  defeat,  exclude,  or  curtail  the  particular  estate,  would, 
in  effect,  remove  its  limits,  and  expand  it  into  a  greater  estate. 
This  is  but  in  conformity  to  what  was  allowable  at  common  law 
in  regard  to  the  enlargement  of  estates  on  condition ;  which 
limitations  so  far  resemble  contingent  remainders  as  to  require 
the  continuance  of  the  particular  estate  till  they  are  vested.  And 
although  the  limitation  should  not  so  far  approach  the  particular 
estate  in  quality,  as  to  come  within  the  doctrine  of  estates  to  be 
enlarged  on  condition,  yet  if  it  be  such  as  cannot  defeat,  exclude 
or  abridge  the  particular  estate,  nor  have  any  other  operation 
than  if  the  words  expressive  of  its  time  of  commencement  had 
been  omitted ;  or  if  it  had  been  in  express  words  postponed,  till 
after  the  determination  of  the  preceding  estates,  the  objection  to 
its  effect  as  a  remainder  does  not  hold ;  as  it  then  in  effect  gives 
no  more  than  the  remnant  or  residue  expectant  on  the  particular 
estate ;  and  could  not  have  entitled  the  grantor  or  his  heir  to 
enter  at  common  law,  in  defeasance  of  the  particular  estate  ;  nor 
operates  at  all  to  the  prejudice  of  strangers  ;  which  are  the 
reasons  assigned  against  the  validity  of  conditional  limitations 

at  common  law.  (a) 
237  *        *  27.  Thus,  suppose  in  the  case  of  a  lease  to  two,  as  in 

a  former  case,  the  limitation  over  after  the  death  of  the 
first  of  them  had  been  to  the  survivor,  instead  of  a  stranger ; 
this  would  not  have  avoided,  defeated,  or  abridged,  the  estate  of 
the  survivor,  but  actually  have  embraced  it  in  the  afflux  of  a 
greater,  into  which  it  would  have  run,  under  the  technical  term 
of  merging,  instead  of  being  rescinded  or  nullified.  The  grantor 
or  his  heir  could  have  no  title  to  enter  and  defeat  the  particular 
estate,  because  there  was  no  condition  or  proviso  to  make  it 
cease,  or  carry  the  estate  either  expressly  or  implicatively  to  any 
body,  from  the  devisee  of  the  particular  estate.     Nor  could  the 

(a)  Fearne,  Cont.  Rem.  264. 


.     Title  XVI.     Remainder.     Ch.  II.  s.  27—28.  741 

limitation  operate  to  the  prejudice  of  another,  viz.  the  person 
otherwise  entitled  to  the  particular  estate,  because  it  was  to  that 
very  person  himself;  and  the  effect  would  have  been  precisely 
the  same  if  the  limitation  had  been,  and  from  and  after  the 
determination  of  the  estate  aforesaid,  to  the  survivor  in  fee. 
Nothing  would,  therefore,  in  that  case,  have  prevented  the  limi- 
tation over  from  operating  strictly  as  a  remainder  at  common 
law.  (a) 

28.  A  person  devised  to  his  wife  Eliza*beth,  and  his  daughter 
Ann,  a  certain  messuage,  &c,  to  hold  unto  his  said  wife  and 
daughter,  for  and  during  the  term  of  their  natural  lives,  and  the 
life  of  the  longer  liver  of  them,  in  equal  proportions ;  and  then 
proceeded  in  these  words  : — "  But  in  case  my  said  daughter  Ann 
should  happen  to  marry  and  have  issue  of  her  body  lawfully 
begotten,  then  and  in  that  case,  after  the  decease  of  my  said 
wife,  I  give  and  devise  all  the  said  messuages,  &c,  unto  my  said 
daughter  Ann,  and  to  her  heirs  and  assigns  forever.  But  if  my 
said  daughter  Ann  should  happen  to  die  single  and  unmarried, 
and  without  issue  of  her  body  lawfully  begotten,  then  and  in 
such  case  I  give  and  devise  the  said  premises  unto  my  said  wife 
Elizabeth,  and  to  her  heirs  and  assigns  forever."  The  testator 
died  in  1774,  leaving  Elizabeth  his  widow,  and  Ann  his  daugh- 
ter, who  was  his  heir  at  law.  Elizabeth  died  in  1775  ;  after  her 
death  Ann  suffered  a  recovery  of  the  estate,  and  devised  it  to  the 
defendant,  and  died  unmarried.  The  heir  of  Elizabeth  brought 
an  ejectment  against  the  devisee  of  Ann. 

Lord  Mansfield  said : — "  It  is  perfectly  clear  and  settled,  that 
where  an  estate  can  take  effect  as  a  remainder,  it  shall  never  be 
construed  to  be  an  executory  devise  or  springing  use.  Here  the 
first  limitation  is  to  two  persons  and  the  survivor,  so  that 
a  preceding  *  freehold  will  be  in  the  survivor ;  and  the  *  23S 
estate  over  is  limited  on  a  contingency  upon  which  a  re- 
mainder may  depend ;  it  is  to  the  daughter  and  her  heirs  (not 
issue)  if  she  should  marry  and  have  issue  ;  and  it  must  have 
taken  effect  after  the  death  of  the  survivor.  There  is  another 
contingency  on  the  event  of  the  daughter's  dying  unmarried  and 
without  issue,  (not  on  failure  of  her  issue,)  and  upon  that  event 
the  remainder  is  to  the  widow  in  fee."     It  was  resolved  that  the 

(a)  Ante,  §  20. 


742  Title  XVI.     Remainder.     Ch.  II.  s.  28—32.    • 

estate  devised  to  Ann,  in  case  she  should  marry  and  have  issue, 
was  a  contingent  remainder,  (a) 

29.  It  has  been  stated  in  Title  XIII.  that  a  condition  must 
avoid  or  determine  the  whole  estate  to  which  it  is  annexed  ;  and 
that  the  benefit  of  a  condition  can  only  be  reserved  to  the  donor 
and  his  heirs,  not  to  a  stranger.  In  consequence  of  this  doc- 
trine, no  remainder  could  be  limited  on  a  condition.  1st.  Because 
such  condition  would  operate  so  as  to  abridge  the  particular 
estate.  2d.  Because  the  entry  of  the  donor,  for  the  condition 
broken,  would  defeat  the  remainder.  (*6) 

30.  It  has,  however,  been  long  settled,  that  where,  in  a  devise, 
a  condition  is  annexed  to  a  preceding  estate,  and  upon  the  breach 
or  non-performance  thereof  the  estate  is  devised  over  to  another, 
the  condition  shall  operate  as  a  limitation,  circumscribing  the 
measure  and  continuance  of  the  first  estate ;  that  upon  the  breach 
or  performance  of  it,  as  the  case  may  be,  the  first  estate  shall 
ipso  facto  determine  and  expire,  without  entry  or  claim  ;  that  the 
limitation  over  shall  thereupon  actually  commence  in  possession, 
and  the  person  claiming  under  it,  whether  heir  or  stranger,  shall 
have  an  immediate  right  to  the  estate.  Thus  is  the  testator's 
intention  effectuated,  by  substantiating  the  subsequent  estate, 
though  limited  to  a  stranger,  and  enforcing  the  performance  of 
the  condition  by  the  determination  of  the  preceding  estate  upon 
the  breach  of  it,  notwithstanding  that  preceding  estate  be  lim- 
ited to  the  heir  himself ;  and  limitations  of  this  kind  are  properly 
called  conditional  limitations,  (c) 1 

31.  Thus,  where  a  person  devised  lands  to  his  mother  for  life, 
after  her  death  to  his  brother  in  fee ;  provided  that  if  his  wife 
(being  then  with  child)  be  delivered  of  a  son,  that  then  the  land 
should  remain  to  the  son  in  fee.  After  the  testator's  death,  a 
son  was  born ;  held,  that  the  fee  of  the  brother  should  cease, 
and  the  estate  vest  in  the  son,  upon  the  happening  of  the  con- 
tingency, (d) 

239  *         *  32.  In  the   case   of  Fry  v.  Porter,  which   has   been 

(n)  Goodtitle  v.  Billington,  1  Doug.  753. 

(6)  1  Roll.  Abr.  472,  474.    Feame,  Cont.  Rem.  272.         (c)  Fearne,  Cont.  Rem.  407,  409. 

(d)  Dyer,  33,  a.  127,  a.     Cro.  Jac.  592. 


1  For  the  difference  between  a  condition,  and  a  conditional  limitation,  see  ante,  tit. 
13,  ch.  2,  §  64,  note. 


Title  XVI.     Remainder.     Ch.  II.  s.  32—35.  743 

already  stated,  (a)  it  was  held  that  Lady  Ann  Knowles  had 
an  estate  tail  till  she  married  without  consent ;  and  that  the 
estate  tail  devised  to  her  was  subject  to  two  limitations ;  the  one 
in  law,  viz.  dying  without  issue  ;  the  other  express  and  in  fact, 
viz.  marrying  without  consent,  which  was  properly  a  conditional 
limitation,  not  a  condition  ;  for,  if  it  were  a  condition,  it  would 
descend  to  the  heir  at  law,  who  might  enter  for  a  breach  of  it, 
and  defeat  the  limitation  over.  It  was  therefore  agreed  that  the 
marriage  without  consent  determined  her  estate  tail,  and  the 
devise  over  took  place,  (b) 

33.  A  person  devised  lands  to  A,  who  was  his  heir  at  law,  and 
other  lands  to  B  in  fee ;  and  that  if  A  molested  B  by  suit  or 
otherwise,  he  should  lose  what  was  devised  to  him,  and  it  should 
go  to  B.  After  the  testator's  death,  A  entered  on  the  lands  de- 
vised to  B,  claiming  them.  It  was  held  that  this  was  a  sufficient 
breach  to  give  title  to  B,  and  that  the  condition  imposed  on  the 
heir  should  not  be  taken  as  a  condition,  because  if  so,  by  de- 
scending on  him  who  alone  could  enter  for  the  breach  of  it,  it 
would  in  this  case  be  fruitless  and  defeated ;  but  it  was  held  to 
be  a  limitation,  which  determined  the  heir's  estate,  and  cast  the 
possession  on  B  without  entry,  (c) 

34.  Where  there  is  no  express  limitation  over,  to  take  effect 
upon  the  breach  or  non-performance  of  the  condition  annexed  to 
the  preceding  estate,  there,  it  seems,  the  condition  or  proviso  is 
not  always  construed  as  a  conditional  limitation,  (d) 

35.  There  is  a  limitation  of  another  kind  which  may  be  con- 
sidered as  an  exception  to  the  rule  at  common  law,  that  an  estate 
limited  to  take  effect  on  a  condition  which  is  to  affect  the  par- 
ticular estate  is  void ;  namely,  those  cases  where  a  particular 
estate  is.  limited  with  a  condition,  that  after  the  performance  of 
a  certain  act,  or  the  happening  of  a  certain  event,  the  person  to 
whom  the  first  estate  is  limited  shall  have  a  larger  estate.  For 
it  was  resolved,  in  the  case  of  Lord  Stafford,  that  such  a  grant 
may  be  good,  as  well  of  things  which  lie  in  grant,  as  of  things 
which  lie  in  livery ;  and  may  be  annexed  as  well  to  an  estate 
tail,  which  cannot  be  drowned,  as  to  an  estate  for  life  or  years, 
which  may  be  merged  by  the  access  of  a  greater  estate,  (e) 

(a)  Tit.  13,  c.  1.  (b)  Bertie  v.  Fanlkland,  tit.  13,  c.  1.  (c)  Anon.  2.  Mod.  7. 

(rf)  Gulliver  v.  Ashby,  Fearne,  Ex.  Dev.  424. 
(c)  Fearne,  Cont.  Eem.  279.     8  Kep.  47. 


744  Title  XVI.     Remainder.     Ch.  II.  s.  36. 

240  *  *  36.  But  that  such  increase  of  an  estate  by  force  of  such 
a  condition  ought  to  have  four  incidents. 

First.  There  ought  to  be  a  particular  estate  as  a  foundation 
for  the  increase  to  take  effect  upon,  which,  Lord  Coke  held,  must 
not  be  an  estate  at  will,  nor  revocable,  nor  contingent. 

Second.  Such  particular  estate  ought  to  continue  in  the  lessee 
or  grantee,  until  the  increase  happens,  without  any  alteration  in 
privity  of  estate,  by  alienation  of  the  lessee  or  grantee ;  though 
the  alienation  of  the  lessor  or  grantor  will  not  at  all  affect  it : 
and  the  alteration  of  persons  by  descent  of  the  reversion  to  the 
heirs  of  the  grantor,  or  his  alienee,  or  of  the  particular  estate  to 
the  representatives  of  the  grantee,  shall  not  avoid  the  condition. 
Where  the  grantee  dies  before  the  performance  of  the  condition, 
his  heir  shall,  after  he  has  performed  the  condition,  be  in  quodam 
modo,  by  descent ;  and  such  increase  need  not  take  place  imme- 
diately upon  the  particular  estate,  but  may  enure  as  a  mediate 
remainder,  subsequent  to  an  intermediate  remainder  for  life,  or  in 
tail  to  somebody  else. 

Third.  The  increase  must  vest  and  take  effect  immediately 
upon  the  performance  of  the  condition  ;  for  if  an  estate  cannot  be 
enlarged  at  the  very  instant  of  time  appointed  for  enlargement, 
the  enlargement  shall  never  take  place;  therefore,  though  the 
reversion  be  in  the  king,  it  shall  instantly  be  out  of  him,  upon 
performance  of  the  condition,  and  vest  in  the  grantee  without 
petition,  or  monstrans  de  droit,  or  other  circumstance :  for  the 
awaiting  such  circumstances  would  frustrate  and  defeat  the  en- 
largement, and  the  law  will  never  require  circumstances  to  sub- 
vert the  substance. 

Fourth.  The  particular  estate  and  the  increase  ought  to  take 
effect  by  one  and  the  same  instrument  or  deed ;  or  by  several 
deeds  delivered  at  one  and  the  same  time,  which  in  effect  is  the 
same  thing,  for  cpice  incontinenti  fiunt,  inesse  videntur ;  because 
the  particular  estate  and  the  increase  thereupon  is  only  a  grant  to 
take  effect  out  of  one  and  the  same  root ;  and  though  the  in- 
crease vest  at  a  different  time,  yet,  when  it  is  vested,  it  has  its 
force  and  effect  from  the  same  grant. 


745 


CHAP.  III. 


ESTATE   NECESSARY   TO    SUPPORT  A   CONTINGENT   REMAINDER. 


Sect.  1.  It  must  be  a  Freehold. 

11.  Unless  the  Remainder  is  for 
Years. 

13.  A  Right  of  Entry  to  a  Free- 
hold is  sufficient. 

1 7.  But  it  must  be  a  present 
Right. 


Sect.  19.  Both  Estates  must  be  creat- 
ed 'by  the  same  Instru- 
ment. 
24.  Where  the  legal  Estate  is 
in  Trustees,  there  needs 
no  other  preceding  Estate- 


Section  1.  It  is  a  general  rule,  that  whenever  an  estate  in 
contingent  remainder  amounts  to  a  freehold,  some  vested  estate  of 
freehold  must  precede  it.1  This  arises  from  the  necessity  there  is 
for  the  freehold  to  pass  out  of  the  grantor  at  the  time  the  remain- 
der is  created  ;  for  if  no  freehold  passes,  then  the  remainder-man 
cannot  have  it.  If  it  passes  at  all,  it  must  pass  either  in  the 
particular  estate,  or  in  some  remainder,  limited  after  it.  In  a 
contingent  remainder  it  cannot  pass,  because  such  remainder,  at 
the  time  of  its  creation,  passes  to,  or  vests  in,  nobody ;  and  if  it 
passes  only  in  some  vested  remainder,  limited  after  the  contin- 
gent remainder,  then  is  such  contingent  estate  precluded  from 
ever  rising  at  all ;  for  that  freehold  then  becomes  vested  in  pos- 
session, which  the  contingent  estate  was  limited  to  precede,  and 
of  course  there  is  no  room  left  for  the  introduction  of  the  con- 
tingent freehold.  It  follows,  therefore,  that  some  preceding 
vested  estate  of  freehold  must  be  limited  to  give  existence  to 
such  contingent  remainder,  (a) 

(a)  Fearne,  Cont.  Rem.  281. 


1  In  Virginia,  where  an  estate  is  limited  in  remainder  to  the  child  or  children  of  any 
person,  to  be  begotten,  posthumous  children  may  take,  notwithstanding  no  estate  has 
been  conveyed  to  support  the  contingent  remainder  after  the  parent's  decease.  Tate's 
Dig.  336.  The  like  provision  has  been  enacted  in  Mississippi ;  Rev.  St.  1840,  ch.  34, 
§  27,  p.  349  ;  and  in  Kentucky,  Rev.  St.  Vol.  I.  p.  443,  §  11. 

vol.  i.  63 


746  Title  XVI.     Remainder.     Ch.  III.  s.  2—5. 

2.  A  person  devised  lands  to  his  son  John  for  fifty  years,  if 
he  should  so  long  live  ;  and,  as  for  his  inheritance  after  the  said 
term,  he  devised  the  same  to  the  heirs  male  of  the  body  of  John. 
The  Court  held  this  devise  to  the  heirs  male  of  the  body  of  John 
to  be  void  as  a  remainder,  for  want  of  an  estate  of  freehold  to 

support  it.  (a) 
242  *         *  3.  But  where  an  estate  was  limited  to  the  use  of  the 

settlor  for  ninety-nine  years,  if  he  should  so  long  live,  re- 
mainder to  trustees  and  their  heirs  during  his  life,  remainder  to 
the  use  of  the  heirs  of  his  body,  &c. ;  it  was  held,  that  the  con- 
tingent remainder  to  the  heirs  of  the  body  of  the  settlor  was 
good,  because  it  was  preceded  by  a  vested  freehold  remainder  to 
the  trustees,  (b) 

4.  There  is  a  case  reported  by  Moore,  where  A  covenanted  to 
stand  seised  to  the  use  of  himself  for  life,  remainder  to  B,  his 
brother's  eldest  son,  for  life,  remainder  to  the  first  and  other  sons 
of  B  in  tail,  remainder  to  the  right  heirs  of  A.  A  was  after- 
wards attainted  of  treason,  and  executed,  before  the  birth  of  any 
son  of  B ;  and  it  was  resolved,  that  by  the  attainder  of  A,  the 
after-born  sons  of  B  were  barred ;  and  that  the  crown  had  the 
fee  simple,  discharged  of  all  the  remainders  limited  to  the  sons  of 
B  not  then  born,  (c) 

5.  Mr.  Fearne  has  observed  that  it  is  extremely  difficult  to 
reconcile  this  resolution  with  the  principle  that  any  preceding 
vested  estate  will  support  a  contingent  remainder ;  for  here, 
whatever  effect  the  forfeiture  of  A's  estate  for  life  and  remainder 
in  fee  might  otherwise  have  had,  yet  as  B  had  a  vested  freehold, 
why  was  not  that  capable  of  supporting  the  contingent  remain- 
ders to  his  sons  ?  There  were  no  reasons  given  for  the  resolu- 
tions in  this  case  ;  and  perhaps  to  account  for  it,  we  were  to 
recur  to  the* supposed  necessity  of  a  seisin  in  the  feoffees,  cove- 
nantees, &c,  to  serve  contingent  uses  when  they  come  in  esse ; 
which  principle  admitted,  it  might  be  inferred,  as  it  seemed 
agreed,  that  the  crown  could  not  stand  seised  to  a  use,  that  there 
could  be  no  seisin  after  A's  forfeiture  to  the  crown,  to  serve  the 
contingent  uses  to  B's  sons,  when  they  came  in  esse ;  and  that, 
on  that  account,  they  could  never  take  effect,  (d) 

(a)  Goodright  r.  Cornish,  1  Salk.  226. 

(b)  Elie  v.  Osborne,  2  Vern.  754.    Doe  v.  Morgan,  infra. 

(c)  Sir  T.  Palmer's  case,  Moo.  815.  (d)  Infra,  ch.  5.     Tit.  11,  c.  3. 


Title  XVI.     Remainder.    Ch.  III.  s.  6—10.  747 

6.  If  there  had  been  an  office  found,  antecedent  to  the  birth, 
of  a  son  of  B,  that  A  was  seised  in  fee,  it  might  have  accounted 
for  the  resolution  in  the  above  case,  by  taking  away  the  right  of 
entry  of  B,  according  to  a  distinction  which  will  be  noticed  in  a 
subsequent  part  of  this  chapter.  And  the  determination  is  con- 
tradicted by  the  two  following  cases. 

7.  J.  S.  was  tenant  for  life,  remainder  to  his  wife  for  life, 
remainder  to  his  first  and  other  sons  in  tail,  remainder  to  the  right 
heirs  of  J.  S.     This  J.  S.  committed  high  treason,  and  then 

*  had  a  son,  and  afterwards  was  attainted.  The  Court  held,     *  243 
that  whether  the  son  was  born  before  or  after  the  attain- 
der, the  contingent  remainder  to  him  was  not  discharged  by  the 
vesting  of  the  estate  in  the  crown,  during  the  life  of  J.  S.,  because 
of  the  wife's  estate,  which  was  sufficient  to  support  it.  [a) 

8.  It  has  been  stated,  that  where  there  is  a  limitation  to  a 
person  for  ninety-nine  years,  if  he  shall  so  long  live,  with  a  re- 
mainder over  to  a  person  in  esse,  such  remainder  is  considered  as 
vested.  But  Mr.  Fearne  has  observed,  that  in  this  sort  of  limi- 
tation, when  not  by  will  or  by  way  of  use,  if  the  term  for  years 
is  so  short  as  to  leave  a  common  possibility  that  the  life  on  which 
it  is  determinable  may  exceed  it,  there  should  be  a  present  vested 
freehold  estate,  to  prevent  the  limitation  over  from  being  void,  as 
a  freehold  to  commence  in  futuro.  (b) 

9.  In  Lord  Derby's  case,  and  that  of  Napper  v.  Sanders,  (c)  a 
preceding  freehold,  being  limited  to  the  feoffees,  left  no  room  for 
this  objection.  But  the  case  put  by  Lord  Hale  stands  indepen- 
dent of  any  preceding  freehold ;  and  though  it  seems  capable  of 
being  supported  upon  the  principle  of  a  preceding  freehold  aris- 
ing by  implication,  yet  there  seems  to  be  no  occasion  for  such  a 
resort,  because  the  allowed  improbability  of  the  life's  exceeding 
the  term  of  years  determinable  thereon,  appears  sufficient  to  take 
such  remainders  out  of  the  description  of  freeholds  to  commence 
in  futuro. 

10.  It  is  generally  true,  says  Mr.  Fearne,  that  in  the  case  of 
a  limitation  to  A  for  twenty-one  years,  if  he  shall  so  long  live, 
and  after  his  death  to  B  in  fee,  the  remainder  to  B  is  void,  as 
being  a  freehold  to  commence  in  futuro,  viz.  after  the  decease  of 
A,  no  freehold  having  been  limited,  so  as  to  take  effect  before 

(a)  Corbet'r.  Tichburn,  Salk.  576.  (b)  Chap.  1,  §  25.     Fearne,  Cont.  Rem.  23. 

(c)  Ante,-c.  1,  $  26,27,28. 


748  Title  XVI.     Remainder.    Ch.  III.  s.  10—12. 

that  period,  because,  in  this  case,  it  is  very  possible  that  the 
period  limited  for  the  remainder  to  take  effect  from,  viz.  the 
decease  of  A,  may  not  happen  till  after  the  determination  of  the 
preceding  estate,  viz.  the  term  of  years  in  which  event  the  re- 
mainder could  not  take  effect  at  all,  as  has  been  already  observed. 
Its  taking  effect  is,  therefore,  uncertain,  in  regard  of  this  impos- 
sibility of  the  preceding  estates  determining  before  the  event 
happens,  from  whence  the  remainder  is  to  commence:  and  should 
it  take  effect  at  all,  it  must  be  in  futwo,  that  is  after  the  event  is 
decided,  on  which  its  taking  effect  depends.     Here,  then,  there 

being  no  preceding  freehold  limited,  the  remainder,  which 
244  *     *  must  take  effect  at  some  future  period,  if  at  all,  is  strictly 

nothing  else  than  a  freehold  limited  to  commence  in  futu- 
re It  is  the  allowed  common  possibility  of  the  life's  exceeding 
the  term  which  creates  such  a  contingency  in  respect  to  the 
remainder's  taking  effect,  as  brings  that  remainder  within  the 
description  of  a  freehold  limited  to  commence  in  futuro,  and 
consequently  within  the  direct  application  of  the  rule  which 
denies  any  effect  to  limitations  of  that  kind,  (a) 

11.  As  to  a  contingent  remainder  for  years,  there  does  not 
appear  to  be  any  necessity  for  a  preceding  freehold  to  support  it ; 
for  the  remainder  not  being  freehold,  no  such  estate  appears 
requisite  to  pass  out  of  the  grantor,  in  order  to  give  effect  to  a 
remainder  of  that  sort,  (b) 

12.  Frances,  Duchess  of  Richmond,  demised  certain  lands  to 
John  Lord  Paulet  and  others,  to  hold  from  thenceforth  for  forty 
years,  if  she  lived  so  long,  in  trust  that  she  might  receive  the 
profits  during  her  life ;  after  her  decease,  one  moiety  thereof  to 
Mary  Clarke,  and  the  other  moiety  to  Joan  Brooke,  their  execu- 
tors, administrators,  and  assigns,  for  and  during  the  term  of  one 
thousand  years,  from  the  death  of  the  said  Frances.  The  Court 
doubted  that  the  remainders  were  void ;  because,  1.  They  could 
not  pass  to  them  by  way  of  present  estate,  they  not  being  parties 
to  the  deed.  2.  They  could  not  be  contingent  remainders,  being 
remainders  for  years,  depending  on  an  estate  for  years ;  and 
there  could  not  be  a  contingent  estate  for  years,  because  a  lease 
for  years  operated  by  way  of  contract ;  therefore  the  particular 
estate  and  the  remainder  operated  as  two  distinct  estates, 
grounded  upon  several  contracts. 

(a)  Fearne,  Cont.  Rem.  23.  (b)  Fearne,  Cont.  Rem.  285. 


Title  XVI.     Remainder.    Ch.  III.  5.  12—15.  749 

Mr.  Fearne  has  observed,  that  this  opinion  seemed  not  to  be 
well  considered,  and  that  the  Court  did  not  appear  to  rely  upon 
it,  when  they  said,  that,  admitting  the  term  of  one  thousand 
years  was  a  contingent  remainder,  it  was  barred  by  a  fine,  and  a 
non-claim,  after  the  time  of  vesting,  (a) 

13.  Although  every  contingent  freehold  remainder  must  be 
supported  by  a  preceding  freehold,  yet  it  is  not  necessary  that 
such  preceding  estate  continue  in  the  actual  seisin  of  its  rightful 
tenant.  It  is  sufficient  if  there  subsists  a  right  to  such  preceding 
estate,  at  the  time  the  remainder  should  vest,  provided  such  right 
be  a  right  of  entry,  and  not  a  right  of  action  only ;  for.  whilst  a 
right  of  entry  remains,  there  can  be  no  doubt  but  that  the  same 
estate  continues,  since  the  right  of  entry  can  exist  only 

*in  consequence  of  the  existence  of  the  estate.  But  *245 
when  the  right  of  entry  is  gone,  and  nothing  but  a  right  of 
action  remains,  it  then  becomes  a  question  of  law,  whether  the 
same  estate  continues  or  not ;  for  the  action  is  nothing  more  than 
the  means  of  deciding  the  question.  Another  estate  is,  in  the 
mean  time,  acknowledged  and  protected  by  the  law,  till  such 
question  be  solemnly  determined  in  a  court  of  justice,  upon  the 
action  brought,  (b) 

14.  If  A  be  tenant  for  life,  with  a  contingent  remainder  over, 
and  the  tenant  for  life  be  disseised,  all  the  estates  are  divested, 
but  the  right  of  entry  of  the  tenant  for  life  will  support  the  con- 
tingent remainders.  If,  however,  in  a  case  of  this  kind,  the  con- 
tingent remainder  does  not  vest  before  such  a  descent  of  the 
estate,  from  the  disseisor  to  his  heir,  as  will  take  away  the  entry 
of  the  tenant  for  life,  within  the  statute  32  Hen.  VIII.  c.  33,  and 
drive  him  to  his  action,  then  is  the  contingent  remainder  gone ; 
because  there  no  longer  subsists  any  right  of  entry  to  support  it, 
that  right  being  turned  into  a  right  of  action,  (c)1 

15.  It  has  been  already  stated,  that  a  tenant  in  tail  might 
alienate  his  estate  by  certain  modes  of  conveyance,  so  as  to  take 
away  the  entry  of  the  issue  in  tail,  and  drive  him  to  his  action  ; 

(a)  Corbet  v.  Stone,  T.  Rayrn.  140.     Fearne,  Cont.  Rem.  485. 
(6)  Fearne,  Cont.  Rem.  486.     1  M'Cl.  &  Yo.  Ex.  R.  58,  88.    Tit.  29,  c.  1. 
(c)  1  Rep.  66  b.     Fearne,  Cont.  Rem.  431.    Lloyd  v.  Brooking,  infra,c.  6.     1  Ld.  Raym. 
316.    Tit.  29,  c.  1. 

1  In  several  of  the  United  States  it  is  expressly  enacted  that  a  descent  cast  shall  not 
take  away  a  right  of  entry.     See  post,  tit.  29,  ch,  1,  §  7,  note. 

63* 


750  Title  XVI.     Remainder.     Ch.  III.  s.  15—19. 

which  was  called  a  discontinuance.  From  which  it  followed, 
that  where  a  contingent  remainder  was  limited  after  an  estate 
tail,  and  the  tenant  in  tail  created  a  discontinuance,!  the  contin- 
gent remainder  would  be  destroyed,  (a) 

16.  The  following  case  arose  in  11  Rich.  II.  A  gift  in  tail 
was  made  to  A.  C,  the  remainder  to  the  right  heirs  of  A.  S. 
The  donee  made  a  feoffment  to  B.  in  fee,  and  afterwards  A.  S. 
died.  His  right  heir  shall  never  have  the  remainder;  for  the 
estate  of  the  land  was,  by  the  feoffment  pf  the  tenant  in  tail, 
divested  and  discontinued ;  and  there  was  not  any  particular 
estate  in  esse,'  or  in  right,  to  support  the  remainder ;  for  by  the 
feoffment  of  the  tenant  in  tail,  his  right  was  utterly  gone.  If 
tenant  in  tail  was  disseised,  and  died,  that  would  not  destroy  the 
remainder ;  for  there  a  right  to  the  particular  estate  remained,  to 
support  the  right  of  the  remainder  ;  but  when  the  tenant  in  tail 
made  a  feoffment,  no  right  remained  in  him.  (b) 

17.  The  right  of  entry  to  support  a  contingent  remainder  must 
be  a  present  right;  a  future  one  will  not  do.     It  must  also 

246  *     precede  *  the  contingency,  and  be  actually  existing  when 
that  happens  ;  for  if  it  only  commences  at  the  same  instant 
with  it,  the  remainder,  it  seems,  will  not  vest ;  [but  a  right  of 
action  will  not  support  the  contingent  remainder.]  (c) 

18.  [It  has  been  held  that]  a  right  of  entry  only  will  not  sup- 
port a  contingent  remainder  limited  by  way  of  use,  [but  that 
there  must  be  an  actual  entry ;  but  this  doctrine  has  been  ques- 
tioned.] (d) 

19.  The  estate  supporting,  and  the  remainder  supported,  should 
both  be  created  by  one  and  the  same  deed  or  instrument ;  %  there- 
UO  Tit.  2,  c.  2,  \  6.  (b)  1  Eep.  135,  b. 

(c)  Fearne,  Cont.  Rem.  288.     1  M'Cl.  &  Yo.  58,  88.     {d)  Vide  infra,  c.  6,  $  28,  el  seq. 


t  [See  Stat.  3  &  4  Will.  4,  c.  27,  §  39,  supr.  "Vol.  I.  p.  79.] 

}  [And  for  this  purpose  a  will  and  codicil  are  parts  of  the  same  assurance ;  so  that  a 
particular  estate  may  be  created  by  a  will,  and  the  remainder  by  a  codicil,  and  vice 
versa.  Hayes  v.  Foorde,  2  Sir  W.  Bl.  Eep.  698.  So,  likewise,  it  would  seem  upon 
principle,  that  an  appointment  under  a  power,  and  the  deed  containing  the  power 
would,  in  reference  to  the  rule  above  stated,  be  considered  as  parts  of  the  same  assur- 
ance ;  since  the  limitations  created  by  an  exercise  of  the  power  are  considered  as  in- 
serted in  the  deed  creating  the  power.  So  that  if  an  estate  be  limited  to  A  for  life,  re- 
mainder to  such  uses  as  he  should  appoint,  and  he  appoint  to  B  in  tail,  the  limitation 
to  B  is  a  valid  remainder.] 


Title  XVI.     Remainder.     Ch.  III.  s.  19—22.  751 

fore  an  estate  for  life  given  by  one  deed,  will  not  support  a 
remainder  o-iven  by  another ;  nor  an  estate  for  life  settled  by  A 
on  B  by  deed,  enure  to  support  a  contingent  remainder  given  by 
the  will  of  A.  (a) 

20.  A  woman  being  tenant  for  life,  her  husband  devised  the 
same  estate  to  the  heirs  of  her  body,  if  they  attained  fourteen 
years.  The  Court  held,  that  this  was  no  remainder,  but  an 
executory  devise ;  for  though  the  wife  had  a  preceding  estate  for 
life,  yet  this  was  a  new  devise,  to  take  effect  after  her  decease, 
and  was  not  a  remainder  joined  to  a  particular  estate.  (6) 

21.  A  being  tenant  for  life  by  marriage  settlement,  remainder 
to  his  wife  for  life,  remainder  to  his  first  and  other  sons  by  that 
marriage  in  tail;  his  father,  the  reversioner,  by  his  will,  after 
reciting  the  settlement,  devised  the  lands  to  the  first  and  other 
sons  of  A,  according  to  the  settlement ;  then  if  A  should  die 
without  issue  of  that  marriage,  he  devised  to  the  first  and  other 
sons  of  A  by  any  other  wife  in  tail  male ;  and  if  A  should  die 
without  issue,  then  he  devised  that  all  the  lands  should  go  to  his 
grandchildren  by  his  daughter  P.  in  fee. 

It  was  contended  that  A  took  an  estate  tail  under  this  will  by 
implication,  and  of  course  the  remainder  over  in  fee  was  well  sup- 
ported; but  the  Court  held,  that  it  was  impossible  to  make 
this  an  *  estate  tail  in  A,  for  nothing  was  given  to  him  *  247 
by  the  devise,  so  that  he  had  only  the  estate  which  he 
took  under  the  first  settlement ;  and  that  there  being  two  several 
conveyances,  the  devise  could  not  be  tacked  to  the  estate  for  life, 
which  was  limited  by  another  conveyance  ;  even  admitting  that 
the  word  issue  could  be  an  implication  of  an  estate  to  the  heirs 
of  the  body  of  A.  (c) 

22.  A  person  made  a  feoffment  to  the  use  of  himself  for  life, 
and  after  the  death  of  A,  and  M.  his  wife,  to  the  use  of  B,  eldest 
son  of  A,  for  his  life ;  this  was  held  to  be  a  contingent  remain- 
der in  B,  being  created  by  the  same  deed  as  the  particular  estate. 
But  though  it  did  not  appear  in  the  case,  yet  it  afterwards 
appearing  upon  examination  that  by  a  former  deed  M.  had  an 
estate  for  life,  Lord  Hale  said  the  remainder  should  not  be  con- 
tingent;    but  the  mentioning  that   the  commencement  thereof 

(a)  Fearne,  Cont.  Kem.  302.     (1  Preston  on  Estates,  p.  90.) 

(b)  Snow  v.  Cutler,  Raym.  162.  (c)  Moor  v.  Parker,  4  Mod.  310.    Tit.  38,  e.  10. 


752  Title  XVI.     Remainder.     Ch.  III.  s.  22—26. 

should  be  after  the  death  of  M.,  was  only  expressing  when  B 
should  take  the  profits  in  possession,  and  did  make  a  contin- 
gency ;  this  not  being  a  remainder  created  by  that  deed,  but  a 
conveyance  of  the  then  subsisting  reversion  or  remainder  expect- 
ant on  the  death  of  M.  (a) 

23.  In  a  modern  case,  where  a  person  having  granted  an  estate 
to  his  eldest  son  for  life,  afterwards  by  his  will,  reciting  that  he 
had  settled  that  estate  upon  his  eldest  son  for  his  life,  proceeded 
in  these  words :  —  "  My  will  is,  and  I  do  hereby,  from  and  after 
his  decease,  give  and  devise  the  same  to  the  heirs  male  of  his 
body  begotten  ;  and  in  default  of  such  issue,  to  the  use  and  be- 
hoof of  my  second,  third,  fourth,  and  fifth  sons,  severally,  suc<- 
cessively,  and  in  remainder,  and  of  the  several  heirs  male  of  the 
body  o{  my  said  sons,"  &c. 

The  Court  held,  that  the  limitation  to  the  heirs  male  of  the 
body  of  the  eldest  son  was  not  a  contingent  remainder,  (b) 

24.  Where  the  legal  estate  is  vested  in  trustees,  there  is  no 
necessity  for  any  preceding  particular  estate  of  freehold  to 
support  contingent  remainders  ;  because  the  legal  estate  in  the 
general  trustees  will  be  sufficient  for  that  purpose,  (c) 

25.  Thus  in  Chapman  v.  Blisset,  it  was  held  by  Lord  Hard- 
wicke,  that  if  the  limitation  to  Joseph's  children  was  a  con- 
tingent remainder,  the  legal  estate  in  the  trustees  would  sup- 
port it.  (d) 

26.  A  devised  to  trustees  and  their  heirs  to  the  use  of  them 
and  their  heirs,  in  trust  for  B  for  life,  remainder  to  his  first  and 

other  sons  successively  in  tail,  remainder  to  the  future 
248  *     sons  of  C  *  successively  for  life,  remainder  over.     B  died 

without  issue  in  the  testator's  lifetime.  The  contingent 
limitations  were  taken  as  executory  devises,  because  no  child 
was  then  born  to  C.  Afterwards  a  child  was  born  to  C,  and 
died;  a  subsequent  remainder-man  claimed  the  estate,  upon  a 
supposition  that  all  the  preceding  intermediate  limitations,  which 
could  not  vest  at  the  death  of  such  child  were  destroyed ;  as  it 
had  been  decreed,  that  upon  the  vesting  of  the  executory  devise 
in  that  child,  the  subsequent  limitations  became  contingent 
remainders,  upon  that  executory  devise.     But  it  was  held  that 

(a)  Weale  v.  Lower,  Pollex.  66.  (b)  Doe  v.  Fonnereau,  1  Doug.  486. 

(c)  Fearne,  Cont.  Rem.  303.  (d)  Tit.  12,  c.  1. 


Title  XVI.     Remainder.     C/i.  III.  s.  26.  753 

the  inheritance  in  the  trustees  was  sufficient  to  support  the  inter- 
mediate contingent  remainders,  until  they  should  come  in  esse, 
although  there  was  no  particular  estate  to  support  them ;  and 
that  the  estate  should  not  vest  in  possession  whilst  an  object  of 
any  preceding  limitation  might  come  in  esse,  (a) 

(a)  Hopkins  v.  Hopkins,  Forr.  44.     1  Yes.  268.     1  Atk.  581.     Gale  v.  Gale,  2  Cox,  Rep. 
136. 


754 


CHAP.  IV. 


OF   THE    TIME    WHEN    A    CONTINGENT    REMAINDER    SHOULD    VEST. 


Sect.  2.  A  contingent  Remainder  must 
vest  during  the  particular 
Estate. 
7.  Or  at  the  instant  when  it 
determines. 
11.  Posthumous  Children  take  as 
if  born. 


Sect.  1 7.  A  vested  Remainder  may  take 
effect,  though  the  preceding 
Estate  be  defeated. 

19.  A  Remainder  mag  fail  as  to 
one  part,  and  take  effect  as 
to  another. 

22.  A  Remainder  may  take  effect 
in  some,  though  not  in  all. 


Section  1.  We  are  now  to  consider  the  time  at  which  it  is 
requisite  a  contingent  remainder  should  vest  in  interest ;  that  is, 
at  what  period,  with  respect  to  the  duration  of  the  preceding 
estate,  the  contingency  upon  which  such  remainder  is  limited  to 
take  effect,  ought  to  happen,  (a) 

2.  It  is  not  only  necessary  that  a  vested  legal  freehold  estate 
should  precede  a  freehold  contingent  remainder,  but  some  such 
preceding  freehold  estate  must  subsist  and  endure  till  the  time 
when  the  contingent  remainder  vests  ;  that  is,  till  the  contin- 
gency comes  to  pass ;  for  it  is  a  general  rule  that  every  re- 
mainder must  vest  during  the  particular  estate,  or  else  at  the  very 
instant  of  its  determination.  So  that  if  a  lease  be  made  to  A 
for  life,  and  after  the  death  of  A  and  one  day  after,  the  land  to 
remain  to  B  for  life,  this  remainder  to  B  is  void;  because  it 
cannot  take  effect  immediately  upon  the  determination  of  the 
preceding  estate,  (b) 

3.  This  rule  was  originally  founded  on  feudal  principles,  and 
was  intended  to  avoid  the  inconveniences  which  might  arise  by 
admitting  an  interval,  when  there  should  be  no  tenant  of  the 
freehold  to  do  the  services  to  the  lord,  or  answer  to  strangers' 
pr&cipes ;    as  well  as  to  preserve  an  uninterrupted  connection 


(a)  Fearne,  Cont.  Rem.  307. 


(b)  Plowd.  25. 


Title  XVI.     Remainder.     Ch.  IV.  s.  3—6.  755 

between  the  particular  estate  and  the  remainder,  which, 

in  *the  consideration  of  law,  are  but  several  parts  of  one     *250 

whole  estate,  (a) 

4.  If,  therefore,  a  lease  for  life  be  made,  with  remainder  to  the 
right  heirs  of  J.  S.,  this  remainder  will  never  vest,  if  the  tenant 
for  life  dies  before  J.  S. ;  for  in  that  case  the  particular  estate 
determines  before  the  contingency  comes  to  pass,  on  which  the 
remainder  is  limited  to  take  effect,  that  is,  the  death  of  J.  S.,  for 
nemo  est  hceres  viventis.  (b) 

5.  So,  where  A,  seised  of  lands  in  fee,  makes  a  lease  for  years 
to  B,  remainder  in  tail  to  C,  remainder  to  the  right  heirs  of  B ; 
in  this  case  B  has  nothing  in  the  fee  ;  but  it  is  a  contingent  re- 
mainder to  his  heir ;  for  B  did  not  take  the  freehold.  If  C  dies 
without  issue  in  the  lifetime  of  B,  the  remainder  becomes  void  ; 
for  the  foundation  and  support  of  this  contingent  remainder  fails, 
because  it  ought  to  have  a  freehold  to  support  it,  when  the  re- 
mainder falls  out ;  but  by  C's  death  without  issue,  living  B,  the 
freehold  is  expired  before  B  can  have  an  heir,  and,  therefore,  the 
remainder  will  never  take  effect,  (c) 

6.  A  testator  devised  to  his  wife  for  life,  remainder  to  E.,  his 
son,  for  ninety-nine  years,  if  he  should  so  long  live ;  after  the 
decease  of  the  wife  and  of  E.,  his  son,  to  the  heirs  of  the  body 
of  the  said  E.,  but  not  to  descend  entirely  unto  E?s  eldest  son, 
but  that  E.  might  appoint  the  same  to  all  his  children  living  at 
his  death  ;  in  default  of  appointment,  then  to  his  sons  as  tenants 
in  common  in  tail,  remainder  to  his  daughters,  remainder  over. 
The  mother  died  in  the  lifetime  of  E.  the  son ;  held,  that  the 
limitation  to  the  issue  of  E.,  being  a  contingent  remainder,  failed 
by  the  death  of  the  mother,  (who  had  the  only  preceding  estate 
of  freehold,)  in  E.'s  lifetime,  for  want  of  a  continuing  particular 
estate  of  freehold  to  support  it.  (d)  ' 

(a)  Tit.  1,  §  3G.  (b)  1  Inst.  378,  a. 

(c)  Jenk.  248.    2  Roll.  Ab.  418.  (J)  Doe  v.  Morgan,  3  Term  Rep.  763. 

1  The  rule,  laid  down  in  Purefoy  v.  Rogers,  2  Saund.  388,  is,  that  where  a  con- 
tingent estate  is  limited  on  a  freehold,  which  is  capable  of  supporting  the  remainder, 
it  shall  always  be  construed  a  remainder,  and  not  an  executory  devise ;  and  in  such 
case,  if  it  be  not  good  as  a  remainder,  it  is  utterly  void.  In  the  case  in  the  text, 
the  remainder  was  contingent,  by  reason  of  the  uncertainty  of  the  person  ;  E.  hav- 
ing no  issue  when  the  devise  took  effect ;  and  his  own  interest  under  the  will  was 
but  a  chattel. 


756  Title  XVI.     Remainder.     Ch.  IV.  s.  7—11. 

7.  Although  no  interval  is  admitted  between  the  determination 
of  the  particular  estate,  and  the  vesting  of  the  remainder,  yet  a 
remainder  may  be  so  limited  as  not  to  vest  till  the  very  instant  on 
which  the  particular  estate  determines. 

8.  Thus,  if  an  estate  be  limited  to  B  during  the  life  of  A, 
remainder  to  the  heirs  of  the  body  of  A,  this  is  good ;  though 
such  remainder  cannot  vest  till  the  very  instant  on  which  the 
particular  estate  determines,  (a) 

9.  So,  if  land  be  given  to  A  and  B,  during  their  joint  lives, 

remainder  to  the  right  heirs  of  him  who  shall  die  first, 
251  *    this  remainder  *  will  be  good,  though  it  cannot  vest  before 
the  determination  of  the  particular  estate,  (b) 

10.  If  there  be  no  particular  estate  in  esse,  nor  any  present 
right  of  entry,  when  the  contingency  happens,  although  the  par- 
ticular estate  be  afterwards  replaced  and  restored,  yet  will  the 
remainder  never  arise.  Only  it  seems  that  the  reversal  of  a  fine 
by  act  of  parliament  will  restore  a  contingent  remainder  de- 
stroyed by  that  fine,  though  a  reversal  for  error  will  not.  (c) 

11.  In  consequence  of  the  principle,  that  where  the  event,  on 
which  a  contingent  remainder  was  limited  to  take  effect,  did  not 
happen  by  the  time  at  which  the  preceding  estate  determined, 
it  never  could  arise,  or  take  effect  at  all,  if  an  estate  was  limited 
to  A  for  life,  remainder  to  his  first  and  other  sons  in  tail,  a 
posthumous  son  of  A  could  not  take.  It  was,  therefore,  the 
ancient  practice,  in  settlements  on  unborn  sons,  to  insert  a  re- 
mainder to  the  intended  wife,  ensient  at  the  death  of  her  husband 
and  her  assigns,  till  the  birth  of  one  or  more  posthumous  sons ; 
and  from  and  after  the  birth  of  any  such  posthumous  sons,  to 
every  of  them  successively  in  tail. 

John  Long  devised  lands  to  his  nephew  Henry  for  life,  re- 
mainder to  his  first  and  other  sons  in  tail,  remainder  to  his 
nephew  Richard,  for  life,  &c.  Henry  died  without  issue,  leaving 
his  wife  ensient  with  a  son.  Richard  entered  as  in  his  remain- 
der, and  afterwards  the  posthumous  son  of  Henry  was  born.  His 
guardian  entered  upon  Richard,  and  it  was  held  by  the  Courts  of 
Common  Pleas  and  King's  Bench,  that  nothing  vested  in  the 
posthumous  son,  because  a  contingent  remainder  must  vest,  dur- 
ing the  particular  estate,  or  at  the  moment  of  its  determination. 

(a)  1  Inst.  298,  a.  (6) -1  Inst.  378,  b. 

(c)  Fearne,  Cont.  Rem.  315.  Infra,  c.  5. 


Title  XVI.     Remainder.     Ch.  IV.  s.  11—13.  757 

On  an  appeal  to  the  House  of  Lords,  this  judgment  was  reversed 
against  the  opinion  of  all  the  Judges,  who  were  much  dissatis- 
fied, (a) 

12.  The  hardship  of  the  determination  of  the  Court  of  King's 
Bench,  and  the  discontent  of  the  Judges  upon  its  reversal  by  the 
Lords,  produced  the  statute  10  &  11  Will.  III.  ch.  16  ;  which 
enacts,  "  That  where  any  estate  shall  by  any  marriage  or  other 
settlement  be  limited  in  remainder  to,  or  to  the  use  of  the  first 
and  other  son  or  sons  of  the  body  of  any  person,  with  any  re- 
mainder or  remainders  over,  to  or  to  the  use  of  any  other  person 
or  persons,  or  in  remainder  to  the  use  of  a  daughter  or 
daughters,  *  with  any  remainder  or  remainders  to  any  *  252 
other  person  or  persons ;  that  any  son  or  sons,  daughter 

or  daughters,  of  such  person  or  persons,  that  shall  be  born  after 
the  decease  of  his,  her,  or  their  father,  shall  and  may,  by  virtue 
of  such  settlement,  take  such  estate  so  limited  to  the  first  and 
other  sons,  or  to  the  daughter  or  daughters,  in  the  same  manner 
as  if  born  in  the  lifetime  of  his,  her,  or  their  father." 

13.  It  is  somewhat  singular  that  this  statute  does  not  mention 
limitations  or  devises  made  by  wills.  There  is  a  tradition,  that 
as  the  case  of  Reeve  v.  Long,  arose  upon  a  will,  the  Lords  con- 
sidered the  law  to  have  been  settled  by  their  determination  in 
that  case ;  and  were,  therefore,  unwilling  to  make  any  express 
mention  of  limitations  or  devises  made  in  wills,  lest  it  should 
appear  to  call  in  question  the  authority  or  propriety  of  their  de- 
termination. Besides,  the  words  of  the  act  may  be  construed, 
without  much  violence,  to  comprise  settlements  of  estates  made 
by  wills,  as  well  as  by  deeds  (b)  1 

(a)  Booth's  Op.  Vid.  Shep.  Touchst.  p.  530.     Reeve  v.  Long,  Salk.  227. 
(6)  Bull.  N.  P.  135. 

1  It  is  now  the  settled  law  in  England  and  in  the  United  States,  that  an  infant  en 
ventre  sa  mere  is  deemed  to  be  in  esse,  for  the  purpose  of  taking  a  remainder,  or  any 
other  estate  or  interest  which  is  for  his  benefit,  whether  by  descent,  by  devise,  or  under 
the  statute  of  distributions.  See  4  Kent,  Comm.  249  ;  Goodtitle  v.  Wood,  Willes,  211, 
21.3  ;  7  T.  R.  103,  n.  S.  C. ;  Thellusson  v.  Woodford,  4  Ves.  227,  321—325,  334,  336, 
341,  342  ;  11  Ves.  112,  138,  149,  S.  C.  in  Dom.  Proc. ;  Swift  v.  Duffield,  5  S.  &  R.  38  ; 
Stedfast  v.  Xicoll,  3  Johns.  Cas.  18 ;  Marsellis  v.  Thalhimer,  2  Paige,  35  ;  Harper  v. 
Archer,  4  Sm.  &  Marsh.  99.  Post,  tit.  32,  ch.  24,  §  32  ;  Louisiana,  Civ.  Code,  art.  205  ; 
New  York,  Rev.  St.  Vol.  II.  p.  11,  §  30 ;  Indiana,  Rev.  St.  1843,  ch.  28,  §  74,  p.  426  ; 
Illinois,  Rev.  St.  1839,  p.  157  ;  Georgia,  Rev.  St.  1845,  ch.  12,  art.  3,  p.  332,  333  ;  South 
Carolina,  Stat,  at  Large,  VoUII.  p.  542  ;  Delaware,  Rev.  St.  1829,  p.  314.  See,  also, 
post,  tit.  29,  ch.  2.§  10,  note  ;  4  Kent,  Comm.  389.     See  24  Am.  Jur.  3,  note  by  Metcalf. 

vol.  i.  64 


758  Title  XVI.     Remainder.     Ch.  IV.  s.  14—16. 

14.  In  a  modern  case,  Lord  Roslyn  said :  "  The  case  of  Reeve 
v.  Long,  certainly  overruling  Archer's  case,  had  decided  that  a 
posthumous  child  was  to  be  taken  to  all  intents  and  purposes  as 
born  at  the  time* the  particular  estate  determined;  it  was  ob- 
served, the  decision  of  that  case  was  contrary  to  the  opinion  of 
the  Judges.  Undoubtedly,  the  Court  of  Common  Pleas  first, 
and,  upon  a  writ  of  error,  the  Court  of  King's  Bench  held 
differently.  But  it  ought  always  to  be  remembered,  it  was  the 
decision  of  Lord  Somers ;  and  that  it  was  not  the  only  case  in 
which  he  stood  against  the  majority  of  the  Judges;  and  the 
better  consideration  of  subsequent  times  has  shown,  his  opinion 
deserved  all  the  regard  generally  paid  to  it.  What  followed  was 
not,  as  it  has  been  inaccurately  stated,  that  the  opinion  being 
against  that  of  the  majority  of  the  Judges,  it  was  supposed  the 
Judges  would  go  against  that  decision.  The  Statute  of  William 
III.  was  not  to  affirm  that  decision ;  it  did  by  implication  affirm 
it ;  but  it  established  that  the  same  principle  should  govern  the 
case  where  the  limitation  was  by  deed  of  settlement.  The 
manner  in  which  the  point  has  been  treated  ever  since  the  case 
of  Burdett  v.  Hopegood,  (a)  and  the  other  cases,  from  the  time 
of  Lord  Cowper  to  that  of  Lord  Hardwicke,  proves  what  the 

opinion  has  been  upon  the  propriety  of  a  rule,  which  it  is 
253  *     *  impossible  to  say  is  attended  with  real  inconvenience, 

and  which  is  according  to  every  principle  of  justice  and 
natural  feeling."  (b) 

15.  A  posthumous  child  is  entitled,  under  the  Statute  10  &  11 
Will.  III.,  to  the  intermediate  profits  of  the  lands  settled,  as  well 
as  to  the  lands  themselves. 

16.  A  bill  was  brought  by  Basset,  an  infant,  against  his  uncle, 
to  have  an  account  of  the  real  and  personal  estate  of  his  father, 
upon  which  several  questions  arose.  The  first  related  to  the  real 
estate,  and  was  this :  J.  P.  Basset,  father  of  the  infant,  settled  the 
bulk  of  his  estate  on  himself  for  life,  remainder  to  trustees  during 
his  life  to  preserve  contingent  remainders,  remainder  to  his  first 
and  other  sons,  remainder  to  his  brother,  who  was  the  defendant. 
Basset,  the  father,  died,  his  wife  privement  ensient.  Basset,  the 
uncle,  entered.     Eight  months  after,  the  son  was  born,  and  en- 

(a)  1  P.  Wms.  486. 

(6)  Thellusson  v.  Woodford,  4  Yes.  342. 


Title  XVI.     Remainder.     Ch.  IV.  s.  16.  759 

tered  upon  his  uncle ;  the  question  was,  who  should  have  the 
intermediate  profits  from  the  death  of  the  father  to  the  birth  of 
the  son. 

Lord  Hardwicke.  "As  to  this  point,  it  must  depend  upon  the 
construction  of  the  Statute  10  &  11  Will.  III. ;  and  as  to  that,  it 
must  be  considered  what  was  the  mischief  intended  to  be  reme- 
died, and  what  remedy  the  legislature  have  applied.  Now,  the 
defendants  say,  nothing  was  intended  to  be  remedied  but  the 
vesting  of  the  remainder,  which  they  say  was  the  only  evil  com- 
plained of  in  the  case  of  Reeve  v.  Long,  in  the  House  of  Lords, 
which  was  the  foundation  and  occasion  of  that  act.  But  I  am 
of  opinion  this  was  not  the  single  mischief  that  was  intended  to 
be  prevented,  but  the  whole  evil ;  and  they  meant  not  only  to 
give  posthumous  children  power  to  enter,  but  to  take  the  profits 
also,  according  to  the  intention  of  persons  making  settlements 
and  wills  too,  of  this  kind ;  and  this  appears  both  from  the  title, 
preamble,  and  provision  of  the  statute ;  and  the  words  are  so 
plain  that,  to  put  any  other  construction  upon  them,  would  be  to 
repeal  the  act ;  which  says,  such  posthumous  child  shall  take  in 
such  manner  as  if  born  in  the  life  of  his  father.  But  it  was  said 
by  the  defendant's  counsel,  that  the  words  take,  8fC,  meant  only 
that  he  should  take  the  remainder  in  such  manner  as  heirs  at  law 
by  descent  take,  who  have  not  intermediate  profits ;  and  that 
this  being  a  new  law,  ought  to  be  considered  according 
*  to  the  rules  of  the  common  law  in  similar  cases ;  and  it  *  254 
is  true  it  is  a  usual  manner  of  construing  new  acts,  accord- 
ing to  the  old  rules,  but  to  do  so  in  this  case  would  be  repugnant 
to  the  words  of  the  act,  for  heirs  by  descent  do  not  take  as  if 
born  in  the  life  of  their  father:  But  the  addition  of  these  words 
in  the  act,  '  although  no  trustees  to  preserve  contingent  remain- 
ders,' clears  this  of  all  objections ;  and  as  before  that  act  all 
accurate  conveyancers  inserted  such  limitations,  so  since,  they 
have  left  them  out,  which  plainly  shows  their  sense  of  the 
statute.  But  the  objections  on  the  part  of  the  defendant  are 
these,  that  there  must  be  some  tenant  to  the  freehold,  somebody 
to  answer  the  prcecipes  of  strangers,  and  this  can  be  nobody  but 
the  uncle.  As  to  this,  I  do  not  know  whether  it  is  material  for 
me  to  consider  it,  because  I  can  get  at  it  in  another  way ;  but 
judges  in  such  cases  must  mould  and  frame  such  estates  as  are 
agreeable  to  the  plain  intention  of  the  legislature.     It  may  vest 


760  Title  XVI.     Remainder.     Ch.  IV.  s.  17—19. 

in  the  uncle,  and  divest  upon  the  birth  of  a  son  by  relation ;  and 
this  is  agreeable  to  the  construction  of  law  in  other  instances,  as 
in  the  case  of  enrolment  of  deeds  ;  here,  though  a  person  has  no 
title  till  enrolment,  yet  from  the  enrolment,  he  is  in  from  the  time 
of  the  execution  of  the  deed. 

"  As  to  the  objection  that  there  is  no  legal  remedy  for  the 
profits  against  the  uncle,  I  think,  if  my  construction  is  right,  the 
son  might  bring  an  ejectment,  and  lay  his  demise  to  the  time  of 
the  death  of  his  father,  and  every  body  would  be  estopped  to  say 
that  he  was  not  born  in  the  life  of  his  father ;  for  how  could  the 
defendant  take  the  objection?  not  till  he  had  entered  into  the 
common  rule ;  and  though  it  is  at  the  plaintiff's  peril  if  he  lays 
his  demise  before  his  title  accrued,  yet,  if  my  construction  is  right, 
his  title  did  accrue,  and  it  would  be  immaterial  whether  he  could 
or  could  not  in  fact  make  such  demise,  because  such  demises  are 
only  looked  upon  as  matters  of  form,  and  not  real,  for  infants 
make  such  demises  every  day.  But  suppose  this  point  of  law 
was  otherwise,  I  am  of  opinion  this  Court  would  make  the  uncle 
a  trustee  for  the  infant,  and  that  seems  to  me  to  be  the  meaning 
of  the  act  of  parliament ;  and  though  it  is  natural  to  pursue 
legal  remedies,  where  such  are  to  be  had,  yet  that  is  no  reason,  if 
they  are  not  to  be  had,  why  remedies  should  not  be  enforced  here, 
I  am  therefore  of  opinion  the  intermediate  profits  of  the  estate 

must  go  to  the  infant."  (a) 
255*         *17.  There  are  some  few  instances  of  vested  remainders 

taking  effect,  though  the  preceding  estate  be  defeated;  as 
where  the  lessor  disseises  A,  his  lessee  for  life,  and  makes  a  lease 
to  B  for  the  life  of  A,  remainder  to  C  in  fee ;  here,  though  A 
enters  and  defeats  the  estate  for  life,  the  remainder  to  C  is  good ; 
for  having  been  once  vested  by  a  good  title,  it  would  be  unrea- 
sonable that  the  lessor  should  have  it  against  his  own  livery,  (b) 

18.  So  if  a  lease  be  made  to  an  infant  for  life,  with  a  re- 
mainder over ;  if  the  infant  at  his  full  age  disagree  to  the  estate 
for  life,  yet  the  remainder  is  good,  having  once  vested  by  a  good 
title,  (c) 

19.  From  the  principle  that  a  contingent  remainder  must  vest 
at  or  before  the  determination  of  the  particular  estate,  it  follows, 
that  an  estate  limited  on  a  contingency  may  fail  as  to  one  part, 

(a)  Basset  v.  Basset,  8  Vin.  Ab.  87.    3  Atk.  203. 

(b)  1  Inst.  298.    Fearne,  Cont.  Rem.  308.  (c)  Idem. 


Title  XVI.     Remainder.     Ch.  IV.  s.  19—21.  761 

and  take  effect  as  to  another,  wherever  the  preceding  estate  is  in 
several  persons ;  for  the  particular  tenant  of  one  part  may  die 
before  the  contingency,  and  the  particular  tenant  of  another  part 
may  survive  it.  (ct) 

20.  A  feme  covert  and  a  stranger  being  joint  tenants  for  life  of 
copyhold  lands,  with  remainder  to  the  heirs  of  the  body  of  baron 
and  feme ;  the  stranger  surrendered  his  moiety  to  the  baron  and 
feme,  afterwards  the  baron  surrendered  the  whole  to  B  in  fee. 
The  feme  died  leaving  issue  ;  then  the  baron  died. 

The  question  was,  whether  the  remainder  to  the  heirs  of  the 
body  of  the  baron  and  feme  vested  in  the  issue.  It  was  adjudged 
that  when  the  stranger  conveyed  his  moiety  to  the  baron,  the 
jointure  between  the  stranger  and  the  feme  covert  was  severed  ; 
when  the  baron  conveyed  the  whole  to  B,  he  took  an  estate  in 
one  moiety  for  the  life  of  the  feme  (defeasible  by  her  on  the 
death  of  her  husband,)  and  in  the  other  moiety,  for  the  life  of 
the  stranger ;  therefore  upon  the  death  of  the  feme  the  estate  in 
the  first  moiety  was  determined,  at  which  time  the  remainder,  as 
to  that  moiety,  ought  to  have  vested,  which  it  could  not  do,  be- 
cause the  person  to  take  it  was  to  be  the  heir  of  the  bodies  of 
both  baron  and  feme  ;  but  that  was  impossible  during  the  life  of 
the  baron,  for  nemo  est  hceres  viventis  ;  therefore,  as  the  remainder 
could  not  vest  at  the  determination  of  the  preceding  estate,  it 
should  never  vest  at  all,  as  to  that  moiety ;  so  that  in  this  case 
the  remainder  failed  as  to  one  moiety,  (b) 

21.  Lord  Ch.  B.  Gilbert  seems  not  to  approve  of  the 
resolution  *  in  the  above  case ;  for  by  construing  the  lim-     *  256 
itation  to  the  heirs  of  the  body  of  the  husband  and  wife, 

a  contingent  remainder,  he  says,  we  suppose  a  deed  made  and  an 
estate  given,  where  at  the  very  first  it  appeared  that,  for  one 
moiety,  the  deed  and  estate  could  have  no  manner  of  effect,  un- 
less the  husband  and  wife  died  at  one  instant  of  time.  Mr. 
Fearne  says  this  seems  to  be  a  mistake,  for  the  original  limitation 
did  not  involve  any  such  inconsistency ;  the  inconvenience  arose 
from  the  subsequent  acts.  The  joint  estate  for  life  might  have 
continued  unsevered  between  the  wife  and  the  stranger ;  and  on 
the  death  of  the  survivor,  there  might  have  been  an  heir  of  the 
bodies  of  the  husband  and  wife  capable  of  taking  when  the  pre- 

(a)  Feame,  Cont.  Rem.  310.  (b)  Lane  v.  Pannel,  1  Roll.  Ab.  238.  317.  438. 

64* 


762  Title  XVI.     Remainder.     Ch.  IV.  s.  21—25. 

ceding  estate  determined,  if  both  husband  and  wife  had  died  in 
the  lifetime  of  the  stranger,  or  if  both  husband  and  stranger  had 
died  in  the  lifetime  of  the  wife.  That  the  Chief  Baron  also 
refers  to  a  case  in  3  Leon.  4,  of  a  surrender  to  the  use  of  the  wife 
for  life,  remainder  to  the  use  of  the  right  heirs  of  the  husband 
and  wife,  where  the  Justices  were  of  opinion  that  the  remainder 
was  executed,  for  a  moiety,  in  the  wife.  But  that  was  not  only- 
superseded  by  the  contrary  decision  in  Lane  v.  Pannel,  but  was 
contrary  to  the  preceding  case  in  Dyer  99,  2  Roll.  Ab.  416,  Dal- 
lison  20,  pi.  8,  cited  in  2  Leon.  102 ;  as  well  as  to  the  doctrine  of 
the  latter  cases,  (a) 

22.  A  contingent  remainder  may  take  effect  in  some,  and  not  in 
all  the  persons  to  whom  it  was  limited ;  according  as  some  may 
come  in  esse,  before  the  determination  of  the  particular  estate, 
and  others  not.  (b) 

23.  Thus,  if  a  limitation  be  to  A  for  life,  remainder  to  the 
right  heirs  of  J  and  K ;  here,  if  J  happen  to  die  before  A,  and 
K  survive  A,  the  heirs  of  the  first  may  take,  but  those  of  the 
latter,  it  seems,  will  be  forever  excluded ;  for  the  heirs  of  J  are 
in  esse  at  the  determination  of  the  preceding  estate,  but  not  the 
heirs  of  K,  who  is  then  living,  (c) 

24.  This  doctrine,  however,  seems  confined  to  limitations  at 
common  law  ;  and  does  not  extend  to  estates  created  by  way  of 
devise. 

25.  Thus,  in  the  case  of  Doe  v.  Perryn,  (d)  the  daughter  had 
no  child  at  the  testator's  death,  but  afterwards  had  three  by  her 

said  husband,  who  died  in  their  parent's  lifetime.  One 
257*     point  *  contended  for  was,  that  the  limitation  being  to  the 

children  in  fee,  was  contingent  till  the  death  of  the  mother  ; 
therefore  the  remainder  over  took  effect  on  her  leaving  no  child. 
But  it  was  held  that  the  fee  vested  in  the  child  first  born  ;  after- 
wards opened  and  let  in  those  born  at  subsequent  periods. 

(a)  Gilb.  Ten.  252.  (6)  Fearae,  Cont.  Rem.  460. 

(c)  1  Inst.  9,  a.     Comb.  467.     1  Ld.  Eaym.  310,  S.  C.        (d)  Ch.  1,  §  53.    3  T.  E.  484. 


763 


CHAP.  V. 

OF  REMAINDERS   LIMITED   BY   WAY   OF   USE,   AND    CONTINGENT   USES. 


Sect.     1.  Remainders  limited  ly    Way 
of  Use. 
10.   There  must  lie  a  particular 
Estate  to  support  the  Re- 
mainder. 


Sect.  15.   Will  divest  in  favor  of  Per- 
sons becoming  entitled. 
18.   Contingent  Uses. 
20.  Springing  Uses. 
26.  Shifting  Uses. 
37.   Out  of 'what  Seisin  they  arise. 


Section  1.  Remainders,  whether  vested  or  contingent,  may 
be  limited  by  way  of  use,  as  well  as  by  conveyances  which  derive 
their  effect  from  the  common  law;  and  remainders  are  now 
usually  created  by  conveyances  to  uses. 

2.  Thus,  if  a  person  covenants  to  stand  seised  to  the  use  of 
A  for  life,  remainder  to  his  first  and  other  sons  in  tail,  (A  having 
no  sons  at  the  time,)  remainder  to  B  in  tail,  remainder  to  the 
covenantor  in  fee ;  a  use  immediately  arises,  out  of  the  seisin  of 
the  covenantor,  to  A  for  life,  and  to  B  in  tail,  which  are  imme- 
diately executed  by  the  statute  27  Hen.  VIII.  c  10 ;  because  in 
this  case  there  are  persons  seised  to  a  use,  a  cestui  que  use,  and  a 
use  in  esse.  But  with  respect  to  the  contingent  uses  limited  to 
the  first  and  other  sons  of  A,  they  cannot  possibly  be  executed, 
because  there  are  no  cestuis  que  use  in  esse.  The  moment  A  has 
a  son,  a  use  in  tail  arises  to  him  out  of  the  seisin  of  the  cove- 
nantor, who  has  the  reversion  in  fee  of  the  legal  estate  in  him ; 
and  the  statute  executes  the  legal  estate  to  such  first  son,  who 
becomes  tenant  in  tail  in  remainder  of  the  legal  estate,  expectant 
on  the  determination  of  A's  life-estate,  (a) 

3.  Where  the  conveyance  operates  by  transmutation  of  pos- 
session, as  in  the  case  of  a  fine,  recovery,  or  release  to  uses,  other 
principles  have  been  adopted  to  support  contingent  remainders 
limited  in  this  manner. 

(«)  Weggf.  Villers,  2  Roll.  Ab.  769.    2  Sid.  64.    Tit.  11,  c.  3. 


764  Title  XVI.     Remainder.     Ch.  V.   *.  4—6. 

259  *  *  4.  Thus  if  lands  are  conveyed  to  trustees  and  their 
heirs  by  fine,  recovery,  or  release,  and  it  is  declared  that 
these  assurances  shall  enure  to  the  use  of  A  for  life,  remainder 
to  his  first  and  other  sons  in  tail,  (A  having  no  son  at  the  time,) 
remainder  to  B  in  fee  ;  in  this  case,  the  use  for  life  limited  to 
A  and  the  use  in  remainder  limited  to  B,  are  immediately  exe- 
cuted by  the  statute,  and  converted  into  legal  estates ;  because 
there  are  persons  seised  to  a  use,  a  cestui  que  use,  and  a  use  in 
esse.  But  with  respect  to  the  contingent  uses  limited  to  the  first 
and  other  sons  of  A,  they  cannot  possibly  be  executed,  because 
there  is  no  cestui  que  use  in  esse.  Whenever  A  has  a  son,  then 
there  is  a  cestui  que  use  in  esse ;  a  use  therefore  vests  in  such 
son  in  tail,  and  the  statute  transfers  the  legal  estate  to  that  use. 

5.  As  no  use  however  can  be  executed  by  the  statute,  unless 
there  is  some  person  seised  to  such  use,  it  was  much  doubted 
out  of  what  seisin  the  use  should  arise  to  the  first  son  of  A.  In 
a  case  in  17  Eliz.  Lord  Ch.  J.  Dyer  says :  —  "  Although  by  the 
words  of  the  statute,  the  freehold  of  the  land,  and  the  fee  simple 
also,  which  the  feoffees  receive,  are  deemed  and  vested  in  the 
cestui  que  use  before  ;  yet,  adhuc  remanet  qucedam  scintilla  juris, 
et  tituli  quasi  medium  quid,  inter  utrosque  status,  scilicet,  ilia 
possibilitas  futuri  usus  emergentis ;  et  sic  interesse  et  titulus,  et 
non  tantum  nuda  auctoritas  sen  potestas  remanet."  (a) 

6.  This  doctrine  was  fully  discussed  in  Chudleigh's  case  ;  and 
Lord  Coke  reports  the  opinion  of  the  majority  of  the  Judges  to 
have  been —  "  That  the  feoffees  since  the  statute,  had  a  possibility 
to  serve  the  future  use  when  it  came  in  esse,  and  that  in  the 
mean  time  all  the  uses  in  esse  shall  be  vested ;  and  when  the 
future  use  comes  in  esse,  then  the  feoffees,  if  the  possession  be 
not  disturbed  by  disseisin  or  other  means,  shall  have  sufficient 
estate  and  seisin  to  serve  the  future  use,  when  it  comes  in  esse, 
to  be  executed  by  force  of  the  statute ;  and  that  seisin  and  exe- 
cution by  force  of  the  statute,  ought  to  concur  at  one,  and  the 
same  time.  And  this  case  is  not  to  be  resembled  to  cases  at  the 
common  law,  for  an  act  of  parliament  may  make  division  of 
estates ;  and  forasmuch  as  this  division  is  made  by  act  of  parlia- 
ment, it  is  not  necessary  that  the  feoffees  should  have  their  an- 
cient estates."  (b) 

(a)  Brent's  case,  Dyer,  340,  b.  (b)  1  Rep.  137,  a. 


Title  XVI.     Remainder.     Ch.  V.  s.  7—8.  765 

7.  They  also  said  "  That  this  construction  was  just,  and  con- 
sonant to  reason  and  equity ;  for  by  this  construction  the  interest 
and  power  that  every  one  hath  will  be  preserved  by  the 

act ;  *  for  if  the  possession  be  disturbed  by  disseisin  or     *  260 
otherwise,  the  feoffees  will  have  power  to  enter  to  revive 
the  future  uses  according  to  the  trust  reposed  in  them  ;  and  if 
they  by  any  act  bar  themselves  of  their  entry,  then  this  case,  not 
being  remedied  by  the  act,  doth  remain  as  it  was  at  common 

law.1 

8.  The  absolute  necessity  of  supposing  some  person  to  be 
seised  to  a  use,  before  it  can  be  executed  by  the  statute,  was  the 
reason  of  adopting  the  doctrine  of  a  possibility  of  entry,  or  scin- 
tilla juris,  in  the  feoffees  or  releasees  to  uses.  The  framers  of 
the  Statute  of  Uses  do  not  appear  to  have  had  contingent  uses 
in  contemplation  when  they  penned  the  act,  otherwise  they 
would  probably  have  inserted  some  clause  respecting  them  ;  and 
when  a  case  of  contingent  uses  arose,  this  fiction  was  recurred 
to  in  order  to  support  them.  But  in  Chudleigh's  case,  (a)  the 
Judges  were  not  unanimous  in  this  opinion  ;  for  Lord  Ch.  Baron 
Periam  and  Justice  Walmsley  held  that  the  intent  of  the  Statute 
of  Uses  was,  to  divest  the  whole  estate  out  of  the  feoffees,  con- 
usees,  or  recoverors,  and  to  vest  it  in  the  cestui  que  use ;  so  that 
it  would  be  against  the  meaning  and  the  letter  of  the  law  also, 

(«)  1  Rep.  132,  b. 


1  The  doctrine  of  Chudleigh's  case  may  be  illustrated  to  the  student,  by  the  case  of 
a  feoffment  to  A  in  fee,  to  the  use  of  B  for  life,  remainder  to  his  unborn  sons  in  tail, 
remainder  to  C  in  fee. 

The  lawyers  who  followed  Chudleigh's  case  held  that  the  uses  to  B's  sons  were 
served  out  of  a  seisin  supposed  to  remain  for  that  purpose  in  A— a  scintilla  juris. 

The  consequence  of  this  supposition  was,  that  A,  B,  and  C,  might,  before  the  birth 
of  a  son,  convey  the  whole  estate,  and  thus  defeat  the  remainder  in  tail,  by  destroying 
the  estate  which  supported  it. 

Others  held,  and  such  is  now  deemed  the  better  opinion,  that,  by  the  Statute  of  Uses, 
the  whole  estate  was  instantly  drawn  out  of  A  and  vested  in  B  for  life,  and  in  C  sub 
modo,  subject  to  open  and  let  in  the  contingent  estates  as  they  come  in  esse. 

If  the  remainder  had  not  been  limited  over,  the  fee  would  have  remained  in  A,  until 
the  contingent  estates  came  in  esse.  Post,  ch.  8,  §  1—13;  Shapleigh  v.  Pilsbury, 
1  Greenl.271. 

The  doctrine  of  scintilla  juris  is  treated  with  great  perspicuity,  in  4  Kent,  Comm. 
238 — 247  ;  where  the  learned  author  concurs  in  the  opinion  of  Ld.  Ch.  Sugden,  that 
it  is  a  groundless  and  absurd  fiction.  See  post,  ch.  G,  §  52,  note  ;  Sugden  on  Powers, 
ch.  1,  §  3. 


766  Title  XVI.     Remainder.     Ch.  V.   s.  8—11. 

to  say  that  any  estate,  or  right,  or  scintilla  juris,  should  remain 
in  the  feoffees  ;  and  the  Chief  Baron  said,  that  this  scintilla  juris 
was  like  Sir  Thomas  More's  Utopia ;  and  that  in  consequence  of 
the  words  of  the  Statute  of  Uses,  "  at  any  time  hereafter  shall 
happen  to  be  seised,"  the  seisin  which  the  feoffees  had  at  the 
beginning,  by  the  feoffment,  would  be  sufficient  within  the  act 
to  serve  all  the  uses,  as  well  future,  when  they  came  in  esse,  as 
present ;  for  there  needed  not  many  seisins,  nor  a  continued 
seisin,  but  a  seisin  at  any  time.  So  a  seisin  at  one  time  would 
suffice ;  for  the  statute  said  "  seised  at  any  time  "  and  it  would 
be  hard,  when  the  statute  required  but  one  seisin,  at  one  time 
only,  that  many  seisins,'at  several  times,  against  the  intent  and 
letter  of  the  statute,  should  be  required.  («) 

9.  The  doctrine  that  contingent  remainders  limited  by  way  of 
use  take  effect  when  they  come  in  esse,  by  means  of  the  possi- 
bility of  entry,  or  scintilla  juris  of  the  feoffees,  is  said  by  Lord 
Hardwicke  to  depend  on  such  refined  and  speculative  reasonings 
as  are  not  very  easy  to  comprehend.  The  consequence  of  admit- 
ting this  possibility  of  entry  is,  that  a  right  of  entry  alone  is  not 
sufficient  to  support  such  uses ;  but  that  where  the  preceding 

estates  are  divested,  there  must  be  an  actual  entry  to 
261  *     restore  *  them.     This  is  a  very  dangerous  doctrine,  and 
will  therefore  be  considered  in  the  next  chapter,  (b) 

10.  The  rule,  respecting  the  necessity  of  an  estate  of  freehold 
to  support  a  contingent  remainder,  holds  equally  in  the  limitation 
of  contingent  remainders  by  way  of  use,  as  by  common-law  con- 
veyances. For,  although  before  the  Statute  of  Uses,  a  feoffment 
to  the  use  of  A  for  years,  remainder  in  contingency,  would  have 
been  good ;  because  the  feoffees  remained  tenants  of  the  legal 
freehold ;  yet,  since  that  statute,  it  is  otherwise,  for  no  estate 
remains  in  the  feoffees  or" releasees  to  uses. 

11.  A  person  conveyed  by  lease  and  release  to  trustees  and 
their  heirs,  to  the  use  of  himself  for  ninety-nine  years,  remainder 
to  the  use  of  trustees  for  twenty-five  years,  remainder  to  the  heirs 
male  of  his  own  body,  remainder  to  his  own  right  heirs.  The 
Court  held  that  the  limitation  to  the  heirs  male  of  the  body  of 
the  releasor  was  void ;  because  there  was  no  preceding  estate  of 
freehold  limited  to  support  it.  (c) 

(a)  1  Rep.  132,  b.     1  Leon.  258.  (£)  Garth  v.  Cotton,  infra,  c.  7. 

(c)  Adams  v.  Savage,  Salk.  679. 


Title  XVI.     Remainder.     Ch.  V.  s.  12—16.  767 

12.  Husband  and  wife  covenanted  to  levy  a  fine  of  the  wife's 
land  to  the  use  of  the  heirs  of  the  body  of  the  husband  on  the 
wife  begotten,  remainder  to  the  use  of  the  right  heirs  of  the  hus- 
band. They  had  issue  that  died  in  their  lifetime ;  afterwards  the 
wife  died,  living  the  husband. 

It  was  resolved,  that  the  limitation  to  the  heirs  of  the  husband 
was  void,  for  want  of  a  preceding  estate  of  freehold  to  support  it ; 
for  the  husband  could  not  take  an  estate  for  life  by  implication, 
because  the  estate  belonged  to  the  wife  ;  and  supposing  an  estate 
for  life  in  the  wife  by  implication,  or  resulting  use,  capable  of 
supporting  the  use  to  the  heirs  of  the  body  of  the  husband  on  the 
wife ;  yet  she,  as  well  as  their  issue,  having  died  in  the  husband's 
lifetime,  before  the  limitation  to  his  right  heirs  could  vest,  that 
must  have  failed  as  a  contingent  remainder,  for  want  of  a  sub- 
sisting particular  estate  to  support  it,  at  the  time  of  his  death,  (a) 

13.  It  appears  from  the  reasoning  in  the  preceding  case,  that 
where  the  grantor  takes  a  freehold  estate  by  a  resulting-  or  implied 
use,  arising  from  the  same  deed,  it  will  support  a  contingent  lim- 
itation as  effectually  as  if  an  estate  of  freehold  had  been  expressly 
limited  to  him. 

14.  So,  in  the  case  of  Penhay  v.  Hurrell,  (b)  after  solemn  argu- 
ment on  the  point,  and  a  case  stated  to  the  Judges,  it  was 
decreed  *that  the  estate  for  life  which  resulted  to  the  cog-     *262 
nizor  was  sufficient  to  support  the  contingent  limitation 

to  his  first  and  other  sons. 

15.  It  has  been  stated,  that  a  remainder  limited  by  a  common- 
law  conveyance  may  take  effect  in  some,  though  not  in  all  those 
to  whom  it  is  given.  But  where  a  contingent  remainder  is  lim- 
ited by  way  of  use  to  several  persons,  who  do  not  all  become 
capable  at  the  same  time  ;  notwithstanding  it  vests  in  the  person 
first  becoming  capable,  yet  it  will  divest,  as  to  the  proportion  of  the 
persons  afterwards  becoming  capable,  before  the  determination  of 
the  particular  estate;  and  they  will  take  jointly,  notwithstanding 
the  different  times  of  vesting,  (c) 

16.  A  conveyance  was  made  to  the  use  of  A  the  husband  for 
life,  remainder  to  the  use  of  B  for  life,  remainder  to  all  the  issues 
female  of  their  two  bodies,  and  the  heirs  of  the  bodies  of  such 
issues  female.     A  and  B  had  issue  a  daughter.     Resolved,  that 

(a)  Davies  v.  Speed,  Show.  Pari.  Ca.  104.     Salk.  675,  n.     Tit.  11,  c.  4. 
(6)  Tit.  11,  c.  4.    2  Freem.  258.  (c)  Tit.  18,  c.  1. 


768  Title  XVI.     Remainder.     Ch.  V.  s.  16—20. 

the  remainder  in  tail  to  the  issues  female  was  not  so  attached  in 
that  daughter,  as  not  to  be  divested  for  a  moiety  on  the  birth  of 
another  daughter ;  for  such  a  limitation  being  by  way  of  use, 
springs  out  of  the  estate,  according  to  the  capacity  of  the  person 
in  whom  it  is  to  vest,  (a) 

17.  Lands  were  settled  to  the  use  of  a  wife  for  life,  remainder 
to  the  use  of  her  husband  for  life,  remainder  to  the  use  of  all  and 
every  their  child  or  children  equally,  if  more  than  one,  as  tenants 
in  common,  &c,  subject  to  a  power  of  appointment  in  the  parents. 
It  was  held,  that  the  remainder  vested  in  the  children  on  their 
respective  births,  (b) 

18.  Soon  after  the  Statute  of  Uses,  and  even  so  late  as  31 
Eliz.,  it  was  laid  down  by  Lord  Chief  Justice  Popham,  in  Chud- 
leigh's  case,  that  no  limitation  of  a  use,  which  was  contrary  to 
the  rules  established  at  common  law,  respecting  the  limitation  of 
legal  estates,  should  be  executed  by  the  statute ;  for,  otherwise, 
all  the  mischiefs  intended  to  be  remedied  by  the  act  would  be 
continued,  or  greater  introduced.  This  idea  was,  however,  soon 
departed  from,  and  advantage  taken  of  an  expression  in  the 
Statute  of  Uses,  in  order  to  support  several  of  those  contingent 
limitations  to  uses  which  had  been  allowed  by  the  Court  of  Chan- 
cery, in  declarations  of  uses,  when  they  were  distinct  from  the 
legal  estate. 

19.  The  Statute  of  Uses  enacts  that  the  estate  of  feof- 
263  *  fees  to  *  uses  shall  be  in  the  cestui  que  use  "  after  such 
quality,  manner,  form,  and  condition  as  they  had  before, 
in  or  to  the  use,  confidence,  or  trust,  that  was  in  them."  Now, 
the  Court  of  Chancery  having  permitted  the  limitation  of  a  use 
for  life  or  in  tail  to  arise  in  futuro,  without  any  preceding  estate 
to  support  it ;  and  also  that  a  use  should  change  from  one  person 
to  another,  by  matter  ex  post  facto,  though  the  first  use  were  lim- 
ited in  fee ;  the  Courts  of  Law,  in  process  of  time,  admitted 
limitations  of  this  kind  in  conveyances  to  uses  ;  and  determined 
that  in  such  cases  the  statute  would  transfer  the  possession  to  the 
cestui  que  use  in  the  same  quality,  form,  and  condition,  as  he  had 
in  the  use.  (c) 

20.  With  respect  to  uses  limited  to  arise  in  futuro,  without 
any  preceding  estate  to  support  them,  which  are  usually  called 

(a)  Mathews  v.  Temple,  Comb.  467.    1  Ld.  Raym.  311. 

(b)  Doe  v.  Martin,  4  Term  R.  39.    Mogg  v.  Mogg,  1  Mer.  654.  (c)  Tit.  11,  c.  4. 


Title  XVI.     Remainder.     Ch.  V.  s.  20—23.  769 

springing  uses,  the  first  case  in  which  a  limitation  of  this  kind 
was  allowed  appears  to  have  been  determined  in  10  Eliz.,  and  is 
thus  reported  by  Dyer. 

21.  J.  M.  being  seised  of  certain  lands  in  fee,  levied  a  fine 
thereof;  and  by  indenture  declared  the  use  of  it  to  be  to  himself, 
and  to  such  wife  and  wives  as  the  said  J.  M.  should  happen 
afterwards  to  marry,  by  whatever  names  she  or  they  might  be 
called,  for  and  during  their  natural  lives,  and  the  life  of  the  sur- 
vivor of  them,  with  divers  remainders  over.  Afterwards  J.  M. 
took  to  wife  one  A.,  and  then  died.  Whether  she  should  take 
any  thing  by  the  said  indenture  or  fine,  or  not,  was  the  question. 
By  the  opinion  of  Wray  and  Meade,  Serjeants,  and  Plowden  and 
Onslow,  solicitors,  she  might ;  and  thereto  they  subscribed  then- 
names. 

Moor  states,  that  the  parties,  not  being  satisfied  with  this  deter- 
mination, the  case  was  carried  into  the  Court  of  Common  Pleas, 
where  it  was  adjudged  in  the  same  manner,  (a) 

22.  The  next  case  that  arose  on  this  point  was  in  37  and  38 
Eliz.,  and  is  thus  reported  by  Croke  : — A  person  made  a  feoff- 
ment, which  was  declared  to  be  to  the  use  of  himself  and  A.  his 
wife  that  should  be  after  then:  marriage,  and  of  the  heirs  of  their 
bodies ;  and  took  A.  to  wife.  The  question  was,  whether  the 
wife  should  take  by  the  limitation  of  this  use.  Coke,  Attorney- 
General,  contended  that  she  should  not,  for  presently  by  the 
feoffment  the  fee  was  in  the  husband  by  the  possession  executed 
to  the  use  which  he  had  before  the  marriage  ;  which  could 
not,  after  the  marriage,  be  divided,  and  made  an  estate 

tail  *  in  him,  as  he  had  the  fee  in  him  till  the  marriage ;  *  264 
for  it  might  have  been  that  the  marriage  had  never  taken 
effect,  and  that  would  have  confounded  the  other  use  ;  and  uses 
in  futuro  could  not  arise  upon  such  future  acts,  for  then  a  use 
would  rise  out  of  a  use.  But  all  the  justices  held,  that  although 
he  were  seised  in  fee  in  the  mean  time,  as  in  truth  he  was,  yet, 
by  the  marriage,  the  new  use  should  arise  and  vest,  (b) 

23.  It  is  said  by  Lord  Chief  Justice  Holt,  that  a  feoffment  to 
the  use  of  A.  and  his  heirs,  to  commence  four  years  from  thence, 
was  good  as  a  springing  use.     In  a  modern  case  this  doctrine  was 

(a)  Mutton's  case,  Dyer,  274,  b.     Moor,  517. 

(6)  Woodliff  v.  Drury,  Cro.  Eliz.  439.  1  Rep.  13G,  a.  Brent's  case,  Dyer,  340,  a,  and 
Bould  v.  Winston,  Cro.  Jac.  168,  infra,  c.  6,  §  39,  45. 

vol.  i.  65 


770  Title  XVI.     Remainder.     Ch.  V.  s.  23—27. 

admitted,  and  an  estate  of  freehold  was  allowed  to  arise  infuturo 
upon  a  covenant  to  stand  seised  to  uses,  (a) 

24.  Thomas  Kirby  being  seised  in  fee  of  the  lands  in  question, 
executed  indentures  of  lease  and  release  of  them  to  his  brother. 
The  lease  was  made  for  a  year  in  the  usual  manner.  The  release 
witnessed,  that,  for  the  natural  love  which  Thomas  Kirby  bore 
to  his  brother,  and  in  consideration  of  £100  paid  to  him  by  his 
said  brother,  the  said  Thomas  Kirby  granted,  released,  and  con- 
firmed to  his  brother,  in  his  actual  possession  then  being  by  virtue 
of  the  lease  for  a  year,  after  the  death  of  the  said  Thomas  Kirby, 
all  that  close,  &c,  to  hold  the  same  to  his  said  brother,  and  the 
heirs  of  his  body. 

It  was  admitted  that  this  conveyance  was  void  as  a  lease  and 
release,  because  it  was  a  grant  of  a  freehold  to  commence  in 
futuro ;  but  the  Court  held  that  it  should  operate  as  a  covenant 
to  stand  seised  to  uses;  and  that  the  estate  should  vest  in  the 
brother  as  a  springing  use.  (b) 

25.  In  all  cases  of  springing  uses  the  estate  remains  in  the 
original  owner  till  the  use  arises;  where  there  is  no  transmuta- 
tion of  possession,  the  springing  use  arises  out  of  the  seisin  of 
the  covenantor  or  bargainor ;  where  there  is  a  transmutation  of 
possession,  the  new  use  arises  out  of  the  seisin  of  the  feoffees, 
releasees,  &c.  (c) 

26.  With  respect  to  uses  limited  so  as  to  change  by  matter  ex 
post  facto,  which  are  usually  called  shifting  or  secondary  uses  ; 
the  following  is  the  first  case  in  which  the  validity  of  a  limi- 
tation of  this  kind  was  discussed. 

27.  A  person  made  a  feoffment  in  fee  to  the  use  of  W.  and  his 
heirs,  until  A.  paid  £40  to  W.,  and  then  to  the  use  of  A.  and 

his  heirs.  A.  paid  the  £40.  Some  of  the  Judges  held, 
265  *     that  if  *  A.  entered,  he  would  become  ipso  facto  seised 

in  fee ;  for  W.  being  seised  in  fee  by  the  Statute  of  Uses, 
A.  would  be  able  to  divest  that  fee,  and  transfer  it  to  himself, 
upon  performance  of  the  condition.  Others  were  of  opinion  that 
the  payment  of  the  money  and  the  entry  of  A.  had  no  effect, 
without  the  entry  of  the  feoffees;  and  then  qudcunque  via  data 
the  entry  would  be  good,  and  A.  would  become  seised  according 
to  the  terms  of  the  deed.     To  this  it  was  added,  that  a  use  might 

(a)  Salk.  675.    12  Mod.  89.  (6)  Roe  v.  Tramner,  2  Wils.  Rep.  75. 

(c)  (Shapleigh  v.  Pilsbury,  1  Greenl.  271.) 


Title  XVI.     Remainder.     Ch.  V.  s.  27—31.  771 

change  from  one  person  to  another  by  some  act  or  circumstance 
ex  post  facto,  as  well  since  as  before  the  statute,  (a) 

28.  A.,  seised  of  the  manor  of  K.,  made  a  feoffment  of  it  to 
the  use  of  the  trustees  and  their  heirs,  upon  condition  that  if 
they  did  not  pay  £10,000  in  fifteen  days,  then  it  should  be  to 
the  use  of  the  feoffor  and  M.  his  wife,  remainder  to  Thomas, 
their  second  son,  in  tail,  with  divers  remainders  over.  The 
money  was  not  paid.  Resolved,  that  the  uses  arose  ;  and,  that 
after  the  death  of  the  feoffor  and  his  wife,  Thomas,  the  second 
son,  was  entitled  to  the  land,  (b) 

29.  A.  levied  a  fine  of  the  manors  of  D.  and  S.,  and  declared 
the  uses  by  deed ;  as  to  the  manor  of  D.,  to  the  use  of  B.  and 
his  heirs ;  and  as  to  the  manor  of  S.,  to  the  use  of  A.  and  his 
heirs,  until  B.  should  be  evicted  out  of  the  manor  of  D.  by  the 
wife  of  A. ;  after  such  eviction,  to  the  use  of  B.  and  his  heirs, 
until  he  should  be  satisfied  with  the  profits  of  the  land  for  the 
damages  received  by  the  eviction.  This  was  held  to  be  a  good 
contingent  use  of  the  manor  of  S.,  so  that  nothing  vested  in  B. 
till  an  eviction,  (c) 

30.  A.,  tenant  for  life,  and  R.,  entitled  to  the  reversion  in  fee, 
covenanted  to  levy  a  fine  to  the  use  of  A.  and  his  heirs,  if  R.  did 
not  pay  him  10s.  on  the  10th  of  September  following ;  and  if  he 
did  pay  it,  then  to  the  use  of  A.  for  life,  remainder  to  the  use  of 
R.  in  fee.  It  was  held,  that  A.  had  an  estate  in  fee,  till  R.  paid 
the  105.  (d) 

31.  Mary  and  Penelope  Tannott  being  seised  in  fee  as  co-heirs, 
in  consideration  of  £4000  paid  to  Mary  by  Carew,  and  of  a  mar- 
riage which  soon  afterwards  took  place  between  Penelope  and 
Carew,  the  said  Mary  and  Penelope  conveyed  all  their  estates  to 
trustees  and  their  heirs,  to  the  use  of  Carew  for  life,  remainder  to 
Penelope  for  life  for  her  jointure,  remainder  to  trustees  to  pre- 
serve contingent  remainders,  remainder  to  the  first  and  other 
sons  of  Carew  and  Penelope  successively  in  tail  male, 
remainder  *to  the  daughters  in  tail,  with  the  ultimate  *266 
remainder  to  Carew  and  his  heirs  forever;  subject  to  a 
proviso  that,  if  it  should  happen  that  no  issue  of  the  said  Carew 
by  the  said  Penelope  should  be  living  at  the  decease  of  the 
survivor  of  them,  and  the  heirs   of  the   said  Penelope   should, 

(a)  Bro.  Ab.  tit.  Feoff,  al.  Use,  pi.  30.  (b)  Harwell  v.  Lucas,  Moo.  99.     1  Leon.  264. 

(c)  Kent  v.  Steward,  2  Roll.  Ab.  792.  Cro.  Car.  358.    (d)  Spring  v.  Caesar,  1  Roll.  Ab.  413. 


772  Title   XVI.     Remainder.     Ch.  V.   s.  31—34. 

within  twelve  months  after  the  decease  of  the  survivor  of  the 
said  Richard  and  Penelope,  dying  without  issue  as  aforesaid,  pay 
to  the  heirs  or  assigns  of  the  said  Carew  £4000,  that  then  the 
remainder  in  fee  simple  so  limited  to  the  said  Carew  and  his  heirs 
should  cease,  and  the  premises  should  remain  to  the  use  of  the 
right  heirs  of  the  said  Penelope  forever.  It  was  held,  that  this 
was  a  good  shifting  use;  and  the  decree  was  affirmed  in  the 
House  of  Lords,  (a) 

32.  In  settlements  made  on  the  younger  sons  of  noble  families 
there  are  provisos  frequently  inserted,  that  if  the  family  estate 
and  title  shall  descend  on  such  younger  sons,  the  estate  limited 
to  them,  in  such  settlements,  shall  cease,  as  if  they  were  dead 
without  issue,  and  shall  go  over  to  the  person  next  in  remainder  ; 
which  is  a  shifting  use. 

33.  W.  Nicolls  devised  his  real  estates  to  trustees,  in  trust  to 
receive  the  rents  and  profits,  and,  after  paying  certain  annuities, 
to  pay  the  surplus  to  his  brother,  Edward  Nicolls,  for  sixty  years, 
if  he  should  so  long  live,  from  and  after  the  expiration  of  the  said 
term,  or  the  decease  of  the  said  Edward  Nicolls  ;  then  to  stand 
seised  to  the  use  of  the  first  and  other  sons  of  Edward  Nicolls, 
and  the  heirs  of  their  bodies  severally  and  successively,  remainder 
over ;  provided,  that  if  the  said  Edward  Nicolls,  or  the  heirs  of 
his  body,  should  become  seised  of  the  estates  of  William  Trafford, 
then  the  trusts  thereby  declared  for  the  use  of  the  persons  who 
should  become  seised  should  cease,  determine,  and  be  absolutely 
void;  and  the  trustees  should  stand  seised  to  the  use  of  the 
person  next  in  remainder  under  his  will,  in  the  same  manner  as 
he  or  she  would  be  entitled,  if  the  person  so  seised  of  Trafford's 
estate  was  or  were  actually  dead.  The  estate  of  Trafford  came 
to  Edward  Nicolls.  Held,  that  the  estate  which  he  took  under 
the  will  ceased,  and  vested  in  his  eldest  son,  being  the  next 
person  in  remainder,  (b) 

34.  Thomas  Heneage  devised  his  real  estates  to  trustees,  to 
the  use  of  his  son,  G.  F.  Heneage,  for  life,  remainder  to  the  use 
of  the  same  trustees  and  their  heirs,  during  the  life  of  the  said 

G.   F.  Heneage,  in  trust  to  preserve  the  contingent  uses 
267  *     and  *  estates  thereinafter  limited ;  nevertheless,  to  permit 

(«)  Lloyd  v.  Carew,  Show.  Pari.  Ca.  137. 

lb)  Nicolls  v.  Sheffield,  2  Bro.  C.  C.  217.     Stanley  v.  Stanley,  16  Ves.  491.    Doe  v.  Yates,  5 
Barn.  &  Aid.  344. 


Title  XVI.     Remainder.     Ch.  V.  s.  34—37.  773 

the  said  G.  F.  Heneage  to  receive  the  rents  thereof  during 
his  life,  remainder  to  his  first  and  other  sons  in  tail  male,  re- 
mainder over ;  with  a  proviso,  that  if  the  said  G.  F.  Heneage,  or 
any  son  of  his,  should  take  his  elder  brother's  estate,  then  the 
limitations  and  estates  thereby  created  and  given  to  the  said  G. 
F.  Heneage  and  his  sons  should  cease  and  be  void,  and  the 
person  next  in  remainder  should  succeed,  as  if  the  said  G.  F. 
Heneage,  or  any  such  son  or  sons  of  his,  was  or  were  dead.  G. 
F.  Heneage  succeeded  to  the  estate  of  his  father's  elder  brother, 
before  he  had  any  child ;  but  afterwards  he  had  two  sons.  Held, 
that  the  limitation  to  the  trustees  to  preserve  contingent  remain- 
ders, continued  during  the  whole  of  the  life  of  G.  F.  Heneage, 
so  as  to  support  the  shifting  use ;  therefore  that  the  second  son 
of  G.  F.  Heneage  took  the  estate  devised,  (a) 

35.  It  is  the  same  where  a  proviso  is  inserted,  that  if  a  person 
to  whom  an  estate  is  limited  shall  not  assume  the  name  and  arms 
of  the  settlor  within  a  certain  period,  the  estate  shall  cease  and  de- 
termine, as  if  the  person  so  refusing  to  assume  such  name  and  arms 
were  dead  without  issue ;  and  shall  go  to  the  person  next  in  re- 
mainder, under  the  limitations  contained  in  such  settlement,  (b) 

36.  It  has  been  resolved,  that  as  contingent  uses  were  only 
allowed,  in  order  to  give  persons  power  to  provide  for  the  exigen- 
cies of  their  families ;  wherever  there  was  a  preceding  estate 
capable  of  supporting  a  subsequent  contingent  limitation,  it 
should  be  construed  to  be  a  contingent  remainder,  and  not  a 
springing  or  shifting  use.  (c) 

37.  Where  springing-  or  shifting  uses  are  created  without 
transmutation  of  possession,  they  arise  out  of  the  seisin  of  the 
covenantors  or  bargainors ;  but  where  they  are  created  by  a 
transmutation  of  possession,  they  are  said  by  some,  to  arise  out 
of  the  seisin  of  the  feoffees,  releasees,  &c.  Thus,  the  late  Mr. 
Booth  says : — "  In  all  future  or  executory  uses,  there  is,  the  in- 
stant they  come  in  esse,  a  sufficient  degree  of  seisin  supposed 
to  be  left  in  the  feoffees,  grantees,  &c,  to  knit  itself  to,  and 
support,  those  uses  ;  so  as  that  it  may  be  truly  said,  the  feoffees 
or  grantees  stand  seised  to  those  uses ;  and  then,  by  force  of  the 

(a)  Doe  v.  Heneage,  4  Term  E.  13.    Fearne,  Cont.   Rem.  App.  No.  G.  Carr  v.  Errol,  14 
Ves.  478. 
(J)  1  Inst.  327,  a,  n.  2.     1  Sanders  on  Uses,  146. 
(c)  Carvvardine  v.  Carwardine,  1  Eden,  27.    2  Doug.  R.  757. 

65* 


774  Title  XVI.     Remainder.     Ch.  V.  s.  37—38. 

statute,  the  cestui  que  use  is  immediately  put  into  the  actual 

possession."  (a) 
268  *  *  38.  A  contingent  use  cannot,  therefore,  arise  out  of 
the  seisin  of  any  prior  cestui  que  use.  Thus  it  is  laid 
down  by  four  of  the  Judges  in  Chudleigh's  case,  that  if  A 
enfeoff  B  in  fee,  to  the  use  of  C  and  his  heirs,  with  a  proviso  that 
if  D  pay  C  £100,  then  that  C  and  his  heirs  shall  stand  seised  to 
the  use  of  D  and  his  heirs  ;  this  is  utterly  void ;  for  the  future 
use  ought  to  be  raised  out  of  the  estate  of  the  feoffee,  and  not 
out  of  the  estate  of  the  cestui  que  use.  (b) 

The  doctrine,  that  contingent  uses  arise  from  a  seisin  sup- 
posed to  be  left  in  the  feoffees,  will  be  considered  in  the  next 
chapter. 

(a)  Tit.  11,  c.  4.    Booth's  Opin.  in  Shep.  Touch.  App, 
(6)  1  Rep.  137,  a 


775 


CHAP.  VI. 

HOW   CONTINGENT   REMAINDERS    AND    CONTINGENT    USES  MAY   BE 

DESTROYED. 


Sect.  1.  Determination  of  the  particu- 
lar Estate  hefore  the  Con- 
tingency. 

8.  A  Conveyance  by  Way  of  Use 

will     not   destroy   a    Re- 
mainder. 

9.  Nor  a  Conveyance  by  a  Ces- 

tui que  Trust. 

10.  A  Forfeiture  sometimes  de- 
stroys a  Remainder. 

13.  An  Extinguishment  of  the  par- 
ticular Estate  destroys  it. 


Sect.  15.  And  also  an  Alteration  in  its 
Quantity. 

28.  How  Remainders  by  Way  oj 
Use  are  destroyed. 

29.  Where  created  without  Trans- 
mutation of  Possession. 

33.  Where  created  by  Transmuta- 
tion of  Possession. 

38.  How  springing  and  shifting 
Uses  are  destroyed. 

49.  Observations  on  the  Doctrine 
of  the  Scintilla  Juris. 


Section  1.  It  has  been  shown  that  a  legal  remainder  must 
vest  in  esse,  or  in  right  of  entry,  either  during  the  existence  of 
the  particular  estate,  or  at  the  very  instant  of  its  determination, 
otherwise  it  will  never  take  effect  at  all;  consequently,  every 
such  determination  of  the  preceding  estate,  before  the  contingency 
happens,  as  leaves  no  right  of  entry,  must  effectually  destroy 
such  contingent  remainder,  (a) 

2.  Thus,  where  a  gift  in  tail  was  made  to  A.  C,  the  remainder 
to  the  right  heirs  of  A.  S.,  and  the  donee  made  a  feoffment  to  a 
stranger  in  fee,  and  afterwards  A.  S.  died.  It  was  held,  that  his 
right  heir  should  not  have  the  remainder ;  for  the  estate  of  the 
land  was,  by  the  feoffment  of  the  tenant  in  tail,  divested  and 
discontinued,  and  all  estates  vested  in  the  feoffee  ;  and  there  was 
not  any  particular  estate,  neither  in  esse,  nor  in  right,  to  support 
the  remainder  when  it  should  fall,  (b) 

3.  It  is  the  same  where  a  tenant  for  life,  with  a  contingent  re- 


(a)  Feame,  Cont  Rem.  316. 


(6)  1  Rep.  135,  b. 


776  Title  XVI.     Remainder.     Ch.  VI.  s.  3—7. 

mainder  expectant  on  his  estate,  makes  a  feoffment  of  his  estate 

for  life ;  it  destroys  the  contingent  remainder.1 
270  *  *  4.  Lands  were  devised  to  Robert  Archer  for  life  ;  after- 
wards to  his  next  heir  male,  and  to  the  heirs  male  of  the 
body  of  such  next  heir  male.  Robert  Archer  made  a  feoffment 
of  his  estate.  Adjudged,  that  the  devise  to  the  heir  male  was  a 
contingent  remainder,  and  was  destroyed  by  the  feoffment ;  for 
every  contingent  remainder  ought  to  vest,  either  during  the  par- 
ticular estate,  or  eo  instanti  that  it  determines.  If  the  particular 
estate  be  ended  or  determined,  in  fact  or  in  law,  before  the  con- 
tingency falls,  the  remainder  is  void,  (a) 

5.  A  fine  levied,  or  a  recovery  suffered,  by  a  particular  tenant, 
in  most  cases,  destroys  a  contingent  remainder,  expectant  on 
such  particular  estate ;  because  such  fine  or  recovery  bars  and 
destroys  the  particular  estate,  (b) 

6.  A  surrender  by  a  tenant  for  life,  of  his  life-estate,  will 
destroy  a  contingent  remainder  limited  upon  such  estate  for  life. 

7.  A  person  was  tenant  for  life,  with  remainder  to  his  first  and 
other  sons  in  tail,  remainder  over  in  tail.  The  tenant  for  life, 
before  he  had  a  son,  surrendered  his  life-estate  to  the  person  in 
remainder.  The  tenant  for  life  afterwards  had  a  son ;  and  the 
Court  held  that  the  surrender,  if  good,  would  have  destroyed  the 
contingent  remainder  to  the  unborn  son.  But  the  surrender  was 
adjudged  void,  because  it  appeared  that  the  tenant  for  life  was 
-non  compos  at  the  time  he  made  the  surrender,  (c)  2 

(«)  Archer's  case,  1  Rep.  66.     Pollex.  389. 

(b)  Vale  tit.  35  &  36.  See  also  Hasker  v.  Sutton,  1  Bing.  500.  Doe  v.  Howell,  10  Bar.  & 
Cr.  191.  (Abbott ».  Jenkins, 10  S.  &  E.  296.  And  see  Lyle  v.  Richards,  9  S.  &  B.  322. 
Dunwoodie  v.  Read,  3  S.  &  R.  435.     Waddell  v.  Rattew,  5  Rawle,  231 J 

(c)  Thompson  v.  Leach,  2  Vent.  198,  S.  C.  2  Salk.  427.     Fearne,  Cont.  Rem.  317. 


1  It  is  expressly  enacted  in  Mississippi,  Eev.  St.  1S40,  How.  &  Hut.  Dig.  p.  348,  §  25, 
that  an  alienation  by  the  tenant  of  the  particular  estate,  or  its  union  by  purchase  or 
descent,  shall  not  operate  to  defeat,  impair  or  in  any  wise  affect  the  remainder.  In  In- 
diana, the  provision  is  more  general  in  terms,  it  being  enacted  that  no  determination  of 
the  particular  estate,  before  the  happening  of  the  contingency,  shall  defeat  a  remainder 
otherwise  valid.  Rev.  St.  1S43,  ch.  28,  §  63,  65,  p.  425.  And  such,  except  as  to 
estates  tail,  is  the  law  in  Maine;  Rev.  St.  1840,  ch,  91,*§  10,  11 ;  and  in  Massachusetts; 
Rev.  St.  ch.  59.  §  7,  8  ;  and  in  Xew  York;  Rev.  St.  Vol.  II.  p.  11,  §  32,  33.  And  see 
4  Kent,  Coram.  252. 

2  See  post,  tit.  32,  ch.  2,  §  23,  and  ch.  4,  §  24.  But  the  conveyance  of  a  person  non 
compos  is  now  held  voidable  only,  and  not  absolutely  void.  Wait  v.  Maxwell,  5  Pick. 
217  ;  Beverley's  case,  4  Rep.  125,  a. 


Title  XVI.     Remainder.     Ch.  VI.  s.  8—14.  777 

8.  If  there  be  tenant  for  life,  with  contingent  remainders 
thereon,  a  bargain  and  sale,  or  lease  and  release  by  the  tenant  for 
life,  will  not  destroy  the  contingent  remainders ;  because  these 
conveyances  only  transfer  what  the  person  seised  of  the  land 
may  lawfully  convey,  and  do  not  divest  any  estate,  (a) 

9.  A  person  who  has  only  a  trust  estate  cannot  by  any  mode 
of  conveyance  destroy  a  contingent  remainder  expectant  on  his 
estate  ;  for  the  legal  estate  being  in  his  trustees,  there  remains  a 
right  of  entry  in  them,  which  will  support  the  remainders,  (b) 

10.  There  are  some  acts  of  a  tenant  for  life,  which  though  they 
amount  to  a  forfeiture  of  his  estate,  so  as  to  give  to  a  vested 
remainder-man  a  title  to  enter,  if  he  pleases,  yet  as  they  do  not 
discontinue,  devest,  or  disturb  any  remainder  or  subsequent  estate  ; 
nor  make  any  alteration  in,  or  merger  of  the  particular  estate, 
they  do  not,  therefore,  as  it  seems,  destroy  or  affect  a  contingent 
remainder ;  unless  advantage  is  taken  of  the  forfeiture  by  any 
subsequent  remainder-man.  (c) 

*  11.  Thus,  if   tenant  for   life   accepted  a  fine  from  a     *271 
stranger,  it  was  a  forfeiture  of  his  estate,  so  as  to  entitle  a 
remainder-man  to  enter;  and  yet  it  did  not  displace  or  divest 
the  remainder  or  reversion,  (d) 

12.  So,  where  A  was  tenant  for  life,  remainder  to  his  first  son 
in  tail,  &c,  remainder  to  B  for  life,  remainder  to  his  first  son  in 
tail,  &c,  A,  having  a  son,  accepted  a  fine  from  B,  then  made  a 
feoffment  in  fee  ;  afterwards  B  had  issue  a  son.  Resolved,  that 
the  acceptance  of  the  fine  displaced  nothing ;  and  though  A's 
feoffment  displaced  all  the  estates,  yet  the  right  of  entry  in  the 
son  of  A  supported  the  contingent  remainders,  (e) 

13.  A  contingent  remainder  may,  however,  be  destroyed  by 
an  act,  which,  though  it  does  not  discontinue  or  divest  any  re- 
mainder or  subsequent  contingent  estate,  yet  extinguishes  the 
particular  estate  on  which  the  contingent  remainder  depends  ;  by 
which  the  contingent  remainder  is  destroyed. 

14.  This  has  been  already  seen  in  the  instance  of  a  surrender 
to  the  person  entitled  to  the  next  estate  in  remainder.  So  where 
a  feme  covert  was  tenant  for  life,  with  remainder  to  her  first  son, 
and  before  the  birth  of  a  son,  the  remainder  in  fee  was  conveyed 

(«)  Tit.  32,  c.  10.  (b)  Fearne,  Cont.  Kern.  320.   Ante,  c.  3,  ^  24.    1  M'Cl.  &  Yo.  55,  58. 

(c)  Fearne,  Cont.  Rem.  323.  .  (d)  1  Inst.  252,  a.    Tit.  35,  c.  9. 

(e)  Lloyd  v.  Brooking,  1  VeEt.  188. 


778  Title  XVI.     Remainder.     Ch.  VI.  s.  14—18. 

to  the  husband  and  wife  by  fine.  Held,  that  the  contingent 
remainder  was  destroyed  by  the  extinguishment  of  the  particular 
estate,  (a) 

15.  It  has  been  frequently  laid  down  that  any  alteration  in  the 
nature  of  the  preceding  estate,  before  the  remainder  vests,  will 
destroy  such  remainder.  As  if  lands  be  given  to  A  in  tail,  and 
if  J.  S.  comes  to  Westminster  Hall  such  a  day,  remainder  to  him 
in  fee,  if  the  lands  descend  from  A  to  two  co-parceners,  who 
make  partition,  the  fee  shall  not  accrue  to  J.  S.,  though  he  should 
come  to  Westminster  Hall  at  the  day.  So  if  lands  be  given  to 
A  and  B  for  the  life  of  C,  remainder  to  the  right  heirs  of  the 
survivor  of  A  and  B,  and  A  release  to  B,  the  remainder  is  de- 
stroyed, {b) 

16.  Notwithstanding  these  dicta,  Mr.  Fearne  was  of  opinion 
that  the  alteration  in  the  particular  estate,  which  would  destroy 
a  contingent  remainder,  must  amount  to  an  alteration  in  its 
quantity,  and  not  merely  in  its  quality  ;  and  thought  this  con- 
clusion was  warranted  by  the  two  following  cases,  (c) 

17.  The  first  is  that  of  Lane  v.  Pannel,  which  has  been  al- 
ready stated,  where  it  seems  that  the  severance  of  the  jointure 

between  the  two  joint  tenants  for  life  did  not  destroy  the 
272  *     *  contingent  remainder,  limited  after  their  joint  estate ;  for 

there  it  is  adjudged  that,  because  the  remainder  could  not 
vest  at  the  death  of  one  of  them,  (after  the  severance  of  the 
jointure,)  such  remainder  was  gone,  as  to  one  moiety  of  the  lands. 
Now  this  judgment  was  nugatory  and  groundless, .if  the  sever- 
ance itself  destroyed  the  remainder  as  to  the  whole.  This,  ll  is 
true,  was  the  case  of  a  surrender  of  copyhold  lands ;  but  no  dis- 
tinction was  taken  on  that  ground,  (d) 

18.  The  other  case  was,  where  lands  were  settled  to  the  use 
of  P.  and  S.  his  daughters  for  their  lives,  remainder  to  the  use 
of  the  first  and  other  sons  of  S.  in  tail  male,  remainder  to  her 
daughters,  remainder  to  the  heirs  of  P.  Afterwards  S.,  before 
the  birth  of  a  son,  by  deed,  released  all  her  right  and  estate  to 
the  use  of  P.  and  his  heirs.  The  question  was,  whether  the  con- 
tingent remainder  limited  to  the  first  son  of  S.,  was  destroyed 
by  her  release  to  her  father.     Adjudged,  that  his  release  by  one 

(a)  Ante,  §  7.     Purefoy  v.  Rogers,  2  Saund.  380.     4  Mod.  284. 

(b)  4  Leon.  237.    Fearne,  Cout.  Rem.  337.  (c)  Idem. 
(d)  Ante,  c.  4.     1  Roll.  Rep.  238,  317,  438. 


Title  XVI.     Remainder.    Ch.  VI.  s.  18—23.  779 

joint-tenant  for  life  to  another  did  not  destroy  the  contingent 
remainder,  (a) 

19.  Lord  Hale  is  reported  to  have  laid  it  down,  that  in  all 
cases  where  the  particular  estate  is  merged  in  the  reversion,  the 
contingent  remainders  are  destroyed,  though  there  be  no  divest- 
ing of  any  estate  ;  and  the  case  of  Purefoy  v.  Rogers,  is  cited  in 
support  of  this  opinion.  It  is,  however,  observable,  that  in  the 
above  case  the  union  of  the  particular  estate  and  the  inheritance, 
arose  from  the  conveyance  or  act  of  the  parties.  But  where  a 
particular  estate  is  limited  with  a  contingent  remainder  over, 
and  afterwards  the  inheritance  is  subjoined  to  the  particular 
estate  by  the  same  conveyance,  the  contingent  remainder  is  not 
destroyed ;  for  where  by  the  same  conveyance  a  particular  estate 
is  first  limited  to  a  person,  with  a  contingent  remainder  over  to 
another,  with  such  reversion  or  remainder  to  the  first  person,  as 
would  in  its  own  nature  drown  the  particular  estate  first  given 
him,  this  last  limitation  shall  be  considered  as  executed  only  sub 
modo ;  that  is,  upon  such  condition  as  to  open  and  separate  itself 
from  the  first  estate,  when  the  condition  happens ;  and  by  no 
means  destroy  or  preclude  the  contingent  estate,  (b) 

20.  Thus,  in  Lewis  Bowles's  case,  it  was  resolved,  that  till 
issue  the  husband  and  wife  were  seised  of  an  estate  tail,  executed 
sub  modo ;  that  is,  till  the  birth  of  issue  male  ;    then  by 
operation  *  of  law,  the  estates  were  divided,  and  the  hus-     *  273 
band  and  wife  became  tenants  for  their  lives,  remainder 

to  their  issue  in  tail  male,  remainder  to  the  heirs  of  the  husband  ; 
the  estate  limited  to  them  for  their  lives  not  being  merged,  (c) 

21.  Where  the  inheritance  becomes  united  to  the  particular 
estate,  by  an  immediate  descent  from  the  person  by  whose  will 
the  particular  estate  and  contingent  remainders  were  limited ; 
there  the  contingent  remainder  will  not  be  destroyed. 

22.  Thus,  in  Archer's  case,  notwithstanding  the  reversion  in 
fee  must  have  descended  on  Robert,  the  devisee  for  life,  upon 
the  death  of  his  father,  the  testator,  yet  he  was  adjudged  to  be 
only  tenant  for  life,  with  contingent  remainder  to  the  next  heir 
male,  (d) 

23.  So,  where  a  person  devised  lands  to  T.,  his  eldest  son,  for 
life  ;  if  T.  should  die  without  issue  living  at  his  death,  then  to 

(o)  Harrison  v.  Belsey,  Eaym.  413.  (*)  2  Saund.  38C. 

(c)  Ante,  c.  1.     Vide  Meredith  v.  Leslie,  tit.  16,  c.  10.  (d)  Ante,  §  4. 


780  Title  XVI.     Remainder.     Ch.  VI.  s.  23—26. 

L.  another  of  the  testator's  sons,  in  fee ;  but  if  T.  should  have 
issue  living  at  his  death,  then  to  the  right  heirs  of  T.  forever. 
Resolved,  that  T.  was  tenant  for  life,  with  remainder  in  fee  in 
contingency ;  and  that  the  descent  of  the  fee  upon  him  as  heir, 
at  the  death  of  his  father,  did  not  destroy  the  contingent  re- 
mainder, (a) 

24.  In  a  modern  case,  Lord  Eldon  observed,  that  in  the  case 
of  Plunkett  v.  Holmes,  the  Court  would  not  hold  that  the  estate 
for  life,  limited  to  the  heir  at  law,  was  merged  by  the  subsequent 
limitation  to  him,  of  a  contingent  remainder  in  fee ;  for  that  re- 
mainder was  not  executed.  They  held,  therefore,  that  the  eldest 
son  took  an  estate  for  life  ;  which  being  sufficient  to  support  the 
remainder  in  fee  to  the  second  son,  and  also  the  remainder  in  fee 
to  the  eldest  son,  as  contingent  remainders ;  they  determined 
that  these  limitations  should  be  supported  as  contingent  re- 
mainders, (b) 

25.  Mr.  Fearne  has  observed,  that  the  contingent  remainders 
were  destroyed  by  the  immediate  descent  of  the  inheritance  upon 
the  devisee  of  the  particular  estate,  then  the  will  creating  such 
remainders  would  be  ipso  facto  void  ;  for  the  particular  estate 
given  by  such  will  would  be  destroyed  by  the  descent  which 
such  will  permitted.  But  where  the  descent  of  the  inheritance 
on  the  particular  estate  is  only  mediate  from  the  person  whose 
will  created  the  particular  estate  and  remainder,  there  can  be  no 

such  inconsistency  in  supposing  the  contingency  to  be 
274  *  destroyed  by  *  the  descent ;  for  in  all  such  cases  the  par- 
ticular estate  is  created,  and  takes  effect  with  a  capacity 
of  being  afterwards  destroyed  by  those  accidents  to  which  the 
nature  of  such  an  estate  is  generally  subject;  such^as  forfeiture, 
merger,  &c.  Its  immediate  destruction  is  not  necessarily  in- 
volved in  the  mode  of  its  creation,  as  it  must,  in  the  former  case, 
under  the  same  construction.  There  can  be  no  necessity,  there- 
fore, to  exempt  the  particular  estate  in  these  cases  from  the  opera- 
tion of  merger  by  descent  in  order  to  give  such  particular  estate 
any  existence,  as  there  is  in  the  former  case,  (c) 

26.  A,  the  father,  being  tenant  for  life,  remainder  to  his  son  B 
for  life,  remainder  to  the  first  son  of  B  in  tail,  remainder  to  the 
heirs  of  the  body  of  A.     Before  B  had  any  son  A  died.     The 

(a)  Plunkett  v.  Holmes,  Kaym.  28.  (b)  Doe  v.  Scudamore,  2  Bos.  &  Pul.  297. 

(c)  Fearne,  Cont.  Rem.  503.    Crump  v.  Norwood,  1  Taunt.  362. 


Title  XVI.     Remainder.     CIi.  VI.  s.  26—29.  781 

Court  held,  that  the  contingent  remainder  to  the  first  son  of  B, 
was  destroyed  by  the  descent  of  the  estate  tail  upon  B.  (a) 

27.  Lands  were  conveyed  to  the  use  of  A  and  his  wife  for 
life,  remainder  to  the  use  of  B,  the  son  of  A,  for  his  life,  re- 
mainder to  the  first  and  other  sons  of  B  in  tail,  remainder  to  his 
daughters  in  tail,  remainder  to  A  in  fee.  A  and  his  wife  died 
in  the  lifetime  of  B,  who  afterwards  died  without  issue,  leaving 
a  wife,  (b) 

The  question  was,  whether  the  wife  was  entitled  to  dower  in 
the  lands.  Decreed  she  was  ;  and  Lord  Hardwicke,  with  one  of 
the  Judges,  was  of  opinion  that  the  estate  for  life  in  B  was 
merged  by  the  descent  of  the  inheritance  upon  him,  and  the  con- 
tingent remainder  destroyed,  (c) 

28.  With  respect  to  the  manner  in  which  contingent  remain- 
ders, limited  by  way  of  use,  may  be  destroyed;  a  distinction  must 
be  made  between  the  remainders  limited  in  conveyances  opera- 
ting without  transmutation  of  possession,  and  conveyances  opera- 
ting by  transmutation  of  possession. 

29.  As  to  the  first,  we  have  seen  that  where  contingent  re- 
mainders are  created  by  a  covenant  to  stand  seised,  or  a  bargain 
and  sale,  the  seisin  of  the  covenantor  or  bargainor  supports  or 
feeds  the  contingent  remainders  when  they  arise  ;  and,  therefore, 
if  in  a  case  of  this  kind  the  covenantor  or  bargainor  conveys 
away  his  estate,  before  the  event  happens  on  which  the  remain- 
der is  to  arise,  but  without  divesting  the  subsequent  estates,  or 
taking  away  the  right  of  entry  of  the  persons  entitled  to'  them, 
and  any  of  those  persons  make  an  entry,  the  subsequent  uses 
will  be  revived.-    For  although  we  have  seen  the  present 

*  right  of  entry  is  alone  sufficient  to  support  a  contingent  *  275 
remainder,  created  by  a  common-law  conveyance ;  yet  as 
there  must  be  a  seisin  to  a  use,  before  it  can  arise,  an  opinion  has 
prevailed  since  Chudleigh's  case,  that  a  right  of  entry  is  not  suffi- 
cient to  support  a  contingent  remainder,  limited  by  way  of  use, 
but  that  there  must  be  an  actual  entry  in  order  to  restore  the 
seisin,  out  of  which  the  use  is  to  arise  ;  and,  therefore,  that  any 
conveyance  by  the  covenantor,  which  divests  his  estate,  and 
takes  away  the  right  of  entry,  will  effectually  destroy  all  COntin- 
Ca)  Kent  v.  Harpool,  1  Vent.  306.  T.  Jones,  76. 
(6)  Hooker  v.  Hooker,  Rep.  Temp.  Hardw.  13.         (c)  Duncomb  V.  Duncomb,  3  Lev.  437. 

vol.  i,  66 


782  Title  XVI.     Remainder.    Ch.  VI.  s.  29—31. 

gent  uses  limited  to  arise  out  of  such  estate,  by  divesting  the 
seisin  from  which  such  contingent  uses  are  to  arise. 

30.  Lord  Coke,  on  the  marriage  of  his  daughter  with  Sir 
James  Villers,  covenanted  to  stand  seised  of  certain  lands,  to  the 
use  of  himself  for  life,  remainder  to  the  use  of  his  wife  for  life, 
remainder  to  the  use  of  his  daughter  for  life,  remainder  to  the 
use  of  the  first  and  other  sons  of  his  daughter  in  tail  male,  with 
the  reversion  in  fee  to  himself. 

Sometime  after  this  settlement  was  made,  Lord  Coke  by  deed, 
reciting  the  settlement,  granted  his  reversion  to  a  stranger,  with- 
out consideration  ;  and  soon  after  he  made  a  feoffment  of  the 
lands,  with  livery  of  seisin.  After  the  death  of  Lord  Coke,  his 
wife  entered,  and  died  seised,  having  survived  the  daughter. 

A  question  arose,  whether  the  contingent  use,  which  was  lim- 
ited to  the  first  son  of  the  daughter,  was  destroyed  or  not,  by 
Lord  Coke's  grant  of  the  reversion,  or  his  feoffment  of  the  land. 
After  great  consideration,  it  was  resolved  that  the  grant  of  the 
reversion  did  not  destroy  the  contingent  remainder ;  for  as  it  was 
made  without  consideration,  and  the  uses  of  the  settlement  were 
recited  in  it,  there  was  both  privity  of  estate  and  confidence  in 
the  person ;  so  that  the  grantee  of  the  reversion  stood  seised  to 
the  former  uses.  As  to  the  feoffment,  it  was  agreed  that  it 
divested  all  the  estates,  and  among  the  rest  the  seisin  of  the 
grantee  of  the  reversion,  but  did  not  bar  the  entry  of  the  grantee 
of  the  reversion ;  therefore,  when  the  wife  entered,  after  the 
death  of  Lord  Coke,  she  thereby  reinstated  all  the  divested 
estates,  and  among  the  rest  the  estate  and  seisin  of  the  grantee 
of  the  reversion ;  which  was  the  estate  and  seisin  that  was  to 
serve  the  contingent  use.  (a) 

31.  It  was  held  by  Lord  Chief  Justice  Glyn,  that  if  in  the 

above  case  the  feoffment  had  been  made  before  the  grant 
276*     of  the  *  reversion,  the  contingent  uses  would  have  been 

forever  destroyed;  for  the  only  seisin  which  could  sup- 
port them  was  that  of  Lord  Coke,  which  would  have  been  de- 
stroyed by  the  feoffment ;  but  Lord  Coke  had  already  transferred 
that  seisin  to  the  grantee  of  the  reversion.  If  he  had  not  departed 
with  that  seisin,  the  contingent  uses  must  have   been   forever 

(a)  Wegg  v.  Villers,  2  Roll.  Ab.  790.     1  Vent.  188.    2  Sid.  64.     Tit.  11,  c.  4. 


Title  XVI.     Remainder.     Ch.  VI.  5.  31—35.  783 

destroyed ;  as  no  entry  by  his  wife  or  daughter  could  have  re- 
vested the  original  seisin  of  Lord  Coke  ;  nor  could  he  himself 
have  entered  against  his  own  feoffment,  (a) 

32.  Lord  Coke  was  compelled  to  make  this  settlement  by  an 
order  of  the  council ;  but  that  he  might  have  the  power  of  pre- 
serving or  defeating  the  contingent  uses,  he  made  this  grant  and 
feoffment,  with  an  intention,  in  case  he  chose  to  preserve  the 
contingent  uses,  to  destroy  the  feoffment,  and  produce  the  grant ; 
but  if  he  thought  proper  to  defeat  the  contingent  uses,  then  to 
destroy  the  grant,  and  produce  the  feoffment.  Death  prevented 
him  from  carrying  this  ingenious  scheme  into  execution,  (b) 

33.  With  respect  to  the  manner  in  which  contingent  remain- 
ders created  in  conveyances  to  uses,  which  operate  by  transmu- 
tation of  possession,  may  be  destroyed,  we  have  seen  that  in 
Chudleigh's  case  a  majority  of  the  Judges  held  that  the  contin- 
gent uses  were  supported  by  a  scintilla  juris,  or  possibility  of 
entry,  left  in  the  feoffees  or  releasees ;  but  that  this  scintilla 
juris,  or  possibility  of  entry,  must  continue  undisturbed  till  the 
event  happens  on  which  the  contingent  use  is  to  arise.  For  if 
the  preceding  estates  be  divested  before  the  event  happens,  then 
the  scintilla  juris,  or  possibility  of  entry  of  the  feoffees  or  re- 
leasees to  uses,  is  destroyed,  as  well  as  the  other  estates ;  and 
there  being  no  seisin  to  the  contingent  use,  when  the  event 
happens  on  which  it  is  limited,  it  can  never  arise,  unless  such 
scintilla  juris,  or  possibility  of  entry,  is  revived,  (c) 

34.  It  follows  that  where  particular  estates,  limited  by  way  of 
use,  are  divested  and  turned  to  a  right,  all  subsequent  contingent 
uses  are  thereby  destroyed ;  unless  some  of  the  persons  entitled 
to  the  preceding  particular  estates,  or  the  feoffees  or  releasees  to 
uses,  or  their  heirs,  make  an  actual  entry,  in  order  to  revest  the 
particular  estates;  for  otherwise  the  scintilla  juris,  or  possibility  of 
entry  of  the  feoffees  or  releasees  to  uses  being  divested,  no 

*  seisin  will  exist  to  the  contingent  use  when  it  arises,  and  *277 
consequently  the  statute  cannot  transfer  the  possession. 

This  doctrine,  however,  has  never  been  established  by  any 
positive  judgment ;  and  appears  so  doubtful,  that  it  will  be  ex- 
amined at  the  end  of  this  chapter. 

35.  A  contingent  remainder  limited  by  way  of  use,  may  be 

(a)  2  Sid.  159.  (/>)  Gilb.  Uses  194.  ic)  Ante,  c.  5.  §  6. 


784  Title  XVI.     Remainder.     Ch.  VI.  5.  35—39. 

destroyed  by  the  destruction  of  the  particular  estate,  before  the 
event  happens  on  which  such  contingent  remainder  is  to  arise. 

36.  Sir  Richard  Chudleigh  enfeoffed  several  persons  of  his 
estate,  to  the  use  of  the  feoffees  and  their  heirs,  during  the  life 
of  Christopher  Chudleigh  his  eldest  son,  (who  had  killed  a  gen- 
tleman and  fled  into  France,)  remainder"  to  the  use  of  the  first 
and  other  sons  of  his  eldest  son  in  tail.  Before  the  birth  of  a 
son,  the  feoffees  enfeoffed  Christopher  Chudleigh  of  the  lands  in 
question  in  fee  simple,  without  consideration,  and  with  notice  of 
the  uses ;  afterwards,  Christopher  Chudleigh  had  a  son ;  the 
question  was,  whether  the  contingent  remainder  to  him  was 
barred  by  the  feoffment. 

It  was  adjudged,  upon  solemn  argument  in  the  Exchequer 
Chamber,  that  there  being  no  son  of  Christopher  to  take,  when 
the  particular  estate  determined  by  the  feoffment,  which  was  a 
forfeiture,  the  son  could  never  after  take  ;  for  that  a  remainder 
in  use  ought  to  vest  during  the  particular  estate,  or  at  least 
eo  instanti  when  it  determines,  as  well  as  a  remainder  at  common 
law.  (a) 

37.  A  person  conveyed  his  lands,  by  feoffment,  to  the  use  of 
himself  and  his  wife,  and  to  the  heirs  of  the  survivor  of  them. 
The  husband  afterwards  made  a  feoffment  of  the  land  and 
died. 

Resolved,  that  the  right  of  entry  in  the  wife  was  not  sufficient 
to  support  the  contingent  remainder,  and  vest  it  in  her  on  the 
death  of  her  husband ;  for  the  particular  estate  was  not  sub- 
sisting at  the  husband's  death,  when  the  fee  should  have  vested, 
because  the  second  feoffment  had  destroyed  it  during  the  cover- 
ture ;  and  though  the  wife's  right  of  entry  took  effect  at  the  in- 
stant the  remainder  should  have  vested,  yet  it  was  insufficient ; 
for  it  should  have  been  then  actually  existing,  (b) 

38.  With  respect  to  the  manner  in  which  springing  and  shift- 
ing uses  may  be  destroyed,  as  there  must  be  a  seisin  to  every 

contingent  use  when  it  arises,  it  follows  that  where  such 
278  *    *  seisin  is  destroyed,  before  the  event  happens  on  which 

the'  springing  or  shifting  use  is  to  arise,  the  use  also  will 
be  destroyed. 

39.  A  person  made  a  feoffment  to  the  use  of  D.,  his  wife,  for 

(a)  Chudleigh's  case,  1  Eep.  120.     Poph.  70. 

(b)  Biggot  v.  Smith,  Cro.  Car.  102.    1  Ld.  Raym.  316. 


Title  XVI.     Remainder.     Ch.  VI.  s.  39—41.         785 

her  life  ;  in  case  the  feoffor  should  survive  his  said  wife,  then  to 
the  use  of  the  feoffor  and  such  person  as  he  should  happen  to 
marry,  for  their  lives,  remainder  to  a  stranger  in  fee.  The  per- 
son in  remainder,  together  with  the  feoffees,  by  the  consent  of 
the  feoffor,  made  a  feoffment  of  the  lands  to  new  feoffees,  to 
other  uses ;  and  the  feoffor  levied  a  fine  to  the  new  uses.  D., 
the  wife  of  the  feoffor,  died ;  afterwards,  he  married  a  second 
wife,  and  died.  The  second  wife  entered,  claiming  under  the 
first  feoffment. 

Mounson  and  Harper  were  of  opinion  that  her  entry  was 
lawful.  But  Dyer  and  Manwood  contended  that  the  contingent 
use  limited  to  her  by  the  first  feoffment  was  destroyed  by  the 
second  feoffment  and  fine  ;  because  the  seisin  of  the  first  feoffees 
was  thereby  divested.  Judgment  was  entered  for  the  widow 
by  assent  of  the  parties  ;  but  in  Chudleigh's  case,  Anderson  is 
reported,  by  Lord  Ch.  J.  Popham,  to  have  said: — "  And  for  Brent's 
case,  I  have  always  taken  the  better  opinion  to  be,  that  the  wife 
cannot  take  in  that  case,  for  the  mean  disturbance,  notwithstand- 
ing the  judgment,  which  is  entered  thereupon,  which  was  by 
assent  of  the  parties,  and  given  only  upon  a  default  made  after 
an  adjournment  upon  the  demurrer." 

In  the  same  case,  Lord  Coke  reports  that  Gawdy  said  of  Brent's 
case : — "  If  the  husband  makes  the  feoffment  in  fee,  before  the 
taking  wife,  the  wife  shall  never  take ;  for  the  possession  and 
estate  of  the  land  is  altered,  changed  and  transferred  to  the  pos- 
session of  another,  before  the  title  of  the  wife  doth  accrue.  But 
if  no  divesting  or  alteration  had  been,  then  the  use  shall  vest  in 
wife."  (a) 

40.  A  devise  of  land  out  of  which  a  future  use  is  limited, 
will  destroy  such  future  use  ;  but  a  devise  of  portions  out  of 
land  will  not  destroy  it ;  for  such  a  devise  does  not  alter  the 
freehold,  (b) 

41.  A  levied  a  fine  to  the  use  of  himself  and  his  heirs,  till  a 
marriage  had  between  B,  his  son,  and  M,  and  after  to  the  use  of 
A  for  life,  remainder  to  B  in  tail,  &c.  A,  by  his  will,  devised 
portions  to  his  daughters  out  of  the  land,  and  died  ;  afterwards 
the  marriage  between  B,  his  son,  and  M  took  place. 

The    two    Chief  Justices   refused,    on    account    of  the    dim- 
fa)  Brent's  case,  Dyer,  340,  a.    2  Leon.  14.    Poph.  76.    1  Eep.  136,  a. 
(b)  Gilb.  Uses,  126. 

66* 


786  Title  XVI.     Remainder.     Ch.  VI.  s.  41—43. 

279  *  culty,  *  to  resolve  the  case  ;  they,  however,  inclined 
clearly,  that  if  there  had  been  a  devise  of  the  land,  it 
would  have  interrupted  the  rising  of  the  future  use.  But  they 
doubted,  because  he  devised  portions  out  of  the  land  only,  and 
did  not  devise  the  land  itself,  (a) 

42.  Where  future  uses  are  limited,  and  the  freehold  is  not 
conveyed  away  or  divested,  but  only  a  term  for  years  is  limited, 
or  a  rent  granted  out  of  the  lands,  the  future  uses  will  not  be 
totally  destroyed;  because  the  seisin  out  of  which  they  are  to 
arise,  is  not  divested ;  but  such  lease  or  rent  will  bind  the  future 
uses,  (b) 

43.  Sir  John  Russell  covenanted  by  indenture,  in  consideration 
of  a  marriage  to  be  had  between  him  and  Lady  Russell,  to  stand 
seised,  to  the  use  of  himself  and  his  heirs,  till  the  marriage; 
after  to  the  use  of  himself  and  Lady  Russell,  and  the  heirs  of 
his  body,  remainder  over.  Subsequent  to  the  execution  of  this 
deed,  but  before  the  marriage,  Sir  John  Russell  made  a  lease  of 
the  lands  for  thirty-one  years,  to  commence  from  the  determina- 
tion of  a  former  term.  The  marriage  took  effect ;  and  upon  the 
death  of  Sir  John  Russell,  his  widow  entered.  The  question  was, 
whether  her  entry  was  lawful  or  not. 

Tanfield.  "  The  point  is  double.  1.  Whether  the  lease  shall 
destroy  the  future  use.  2.  If  it  shall  not  destroy  it,  whether  it 
shall  not  bind  the  future  use.  For  it  ought  to  arise  out  of  the 
estate  which  the  covenantor  had  at  the  time  of  the  covenant; 
which  estate  ought  to  continue  without  alteration  till  the  time 
that  the  use  shall  arise,  which  is  not  here,  for  this  is  a  term  in 
reversion.  To  the  second,  this  lease  made  upon  good  considera- 
tion before  the  use  did  arise  shall  bind  it ;  for  the  use  shall  not 
otherwise  be  executed,  than  if  it  had  been  at  the  common  law. 
And  a  lease  made  bond  fide  to  one  who  had  not  notice  thereof, 
shall  bind  it." 

Popham.  "  The  statute  executes  only  uses  in  esse,  and  not 
any  contingent  uses,  until  they  happen  in  esse ;  then  this  use 
was  merely  void  until  marriage,  for  there  was  not  any  new  estate 
in  him  ;  and  if  he,  after  that  covenant,  had  made  a  feoffment,  or 
a  gift  in  tail,  to  one  who  had  not  any  notice  thereof,  it  would 
questionless  never  have  arisen.     And  as  at  the  common  law 

(a)  Strangeways  v.  Newton,  Moo.  731.  (6)  Gilb.  Uses,  126. 


Title  XVI.     Remainder.     Ch.  VI.  s.  43-^45.  787 

feoffees  might  destroy  uses  in  esse,  so  now  may  he  out  of  whose 
estate  a  future  use  is  to  be  raised,  for  the  freehold  is 
destroyed  *out  of  which  it  should  arise;  and  whether  *280 
the  lease  for  years  should  altogether  destroy  the  arising 
thereof,  is  not  in  this  case  material ;  but  clearly  it  shall  bind  the 
contingent  use ;  and  so  resolved  in  Strangeways'  case.  And  at 
the  common  law,  it  is  clear  that  the  cestui  que  use  shall  not  avoid 
such  a  lease  made  by  the  feoffees  upon  good  consideration,  no 
more  than  a  contingent  use  at  this  day." 

Fenner  agreed — "  That  if  a  freehold  be  conveyed  to  one  upon 
consideration,  the  future  use  shall  not  arise ;  for  there  is  not 
any  person  seised  to  that  use  when  it  should  arise.  But  this 
lease  will  not  destroy  or  hinder  it ;  for  the  same  freehold  remains, 
and  the  use  is  annexed  to  the  lease,  and,  therefore,  the  lease  shall 
not  disturb  nor  bind  it." 

Clench — «  Agreed  with  him  for  this  last  reason  ;  but  it  was 
adjourned." 

This  case  appears  to  have  been  again  argued  in  43  &  44  Eliz., 
when  Gawdy,  Popham,  and  Clench  held — "  That  the  lease  made 
(whereout  the  use  did  arise)  was  good,  and  should  bind  the 
future  use,  as  a  lease  by  feoffees,  made  upon  a  good  considera- 
tion, shall  bind  cestui  que  use  at  common  law.  But  it  shall  not 
destroy  the  whole  future  use,  but  shall  stand  for  the  freehold, 
because  the  seisin  is  not  changed."  And  Popham  said — "  That 
he  had  conferred  with  divers  of  the  other  Justices  at  Serjeants' 
Inn,  who  agreed  with  this  opinion."  But  Fenner,  e  contra — 
"  Because  the  lease  did  not  disturb  the  freehold  when  the  use  is 
executed,  this  shall  relate  to  the  limitation,  and  shall  bind  all 
mesne  acts ;  and,  therefore,  shall  not  bind  the  feme  as  to  her 
jointure  ;  wherefore  it  was  adjourned,  (a) 

44.  In  another  case,  which  was  argued  about  the  same  period, 
Popham  and  Anderson  appear  to  have  been  clearly  of  opinion 
that  a  lease  for  years  would  prevent  the  arising  of  a  future  use. 
But  in  the  following  case,  the  contrary  doctrine  seems  to  have 
prevailed,  (b) 

45.  Sir  H.  "Winston  covenanted  by  indenture,  in  consideration 
of  natural  love  and  affection  to  William  Winston,  his  eldest  son, 
to  stand  seised  to  the  use  of  his  said  son  for  life,  remainder 

(a)  Wood  v.  Reigaold,  Cro.  Eliz.  764.  854.    Ante,  §  41. 

(b)  Barton's  case,  Moo.  743. 


788  Title  XVI.     Remainder.     Ch.  VI.  s.  45-47. 

to  such  wife  as  he  should  marry  for  life,  remainder  over.     After- 
wards, the  said  W.  Winston  being  unthrifty,  and  in  Gloucester 

jail,  Sir  H.  Winston,  to  disturb  the  rising  of  the  use  to  the 
281  *    *  woman  whom  his  son  should  marry,  made  a  lease  of  the 

land  for  a  thousand  years  to  his  younger  son.  W.  Winston 
married  the  jailer's  daughter,  and  died  without  issue.  The  ques- 
tion was,  whether  this  lease  was  good  against  his  widow. 

Croke  reports  the  Court  to  have  been  of  opinion  that  the  lease 
should  not  bind  the  estate  of  the  wife,  because  there  was  a  good 
estate  by  the  first  limitation ;  which,  if  not  destroyed,  could  not 
be  charged  or  encumbered,  after  it  was  raised ;  for  it  had  relation 
to  the  first  covenant,  and  none  had  interest  to  charge  it :  and 
that  the  lease  should  not  destroy  it,  but  must  be  construed  to 
arise  out  of  the  reversion  which  Sir  H.  Winston  had,  and  might 
lawfully  charge. 

Noy,  who  has  reported  this  case  by  another  name,  says,  the 
Court  thought  the  lease  for  years  did  not  hinder  the  rising  of  the 
contingent  use  ;  but  that  the  lease  has  in  this  case  took  effect  as 
a  future  interest,  out  of  the  fee  that  was  in  the  covenantor,  after 
the  estate  determined ;  and  at  the  worst  the  wife  should  have 
the  reversion  and  rent  during  her  life,  (a) 

46.  The  determinations  in  the  preceding  cases  are  very  un- 
satisfactory, and  are  contradicted  by  others  of  equal  authority. 

Thus,  where  a  tenant  for  life  levied  a  fine  to  the  reversioner 
in  fee,  and  the  uses  of  it  were  declared,  to  the  cognizee  and  his 
heirs,  upon  condition  that  he  would  pay  an  annuity  to  the  cog- 
nizor,  the  tenant  for  life,  and  in  default  of  payment  that  the  use 
should  be  to  the  cognizor  for  life,  and  one  year  more  :  The  cog- 
nizee made  a  feoffment  of  the  land  ;  and  it  was  determined  that 
this  feoffment  did  not  destroy  the  future  use,  which  was  to  arise 
upon  default  of  payment  of  the  annuity,  (b) 

47.  In  the  case  of  Lloyd  v.  Carew,  the  last  in  which  this  point 
arose,  Richard  Carew  and  Penelope  his  wife,  levied  a  fine  for  the 
express  purpose  of  destroying  the  contingent  use ;  and  yet  the 
House  of  Lords  determined  that  the  contingent  use  arose,  and 
that  the  fine  could  not  bar  the  benefit  of  the  proviso  ;  for  that 
the  same  never  was,  nor  ever  could  be,  in  Penelope  who  levied 
the  fine,  (c) 

(«)  Bould  v.  Winston,  Cro.  Jac.  168.     Bolls  v.  Winston,  Noy,  122.    Gilb.  Uses,  138. 
ib)  Smith  17.  Warren,  Cro.  Eliz.  688.  (c)  Ante,  c.  5. 


Title  XVI.     Remainder.     Ch.  VI.  s.  48—50.  789 

48.  In  a  note  to  a  passage  in  Viner's  Abridgment,  by  the  late 
Mr.  Sergeant  Hill,  which  has  been  published  by  Mr.  Sugden,  he 
states  his  opinion,  that  where  a  future  contingent  use  was  not 
limited  in  remainder  after  a  particular  estate,  but  as  a 
springing  *  use  after  a  fee,  there  no  act  done  by  him,  who  *  282 
had  the  base  or  qualified  fee,  would  destroy  it,  except  in 

the  case  of  a  covenant  to  stand  seised  to  future  uses,  (a) 

49.  The  doctrine  that  contingent  uses  are  supported  by  a 
scintilla  juris,  or  possibility  of  entry  in  the  original  feoffees,  re- 
leasees, &c,  stands  only  upon  the  authority  of  an  extrajudicial 
opinion  of  a  majority  of  the  Judges  in  Chudleigh's  case.  It  is 
very  strongly  combated  by  Lord  Chief  Justice  Pollexfen,  who 
makes  the  following  observations  on  the  great  inconveniences 
that  would  follow  from  its  admission :  (b) 

50.  "  If  it  should  now  remain  in  the  power  of  these  conusees, 
feoffees,  or  covenantors,  and  their  heirs  by  their  fine,  feoffment, 
or  any  other  act,  to  destroy  all  those  contingent  remainders, 
what  room  and  place  will  there  then  be  for  confederacies  and 
contrivances  ;  and  the  estates  of  most  of  the  families  in  England, 
in  respect  to  their  issues  and  posterity,  be  put  into  danger,  and 
into  the  will  and  power  of  strangers  and  mean  persons ;  such  as 
feoffees  and  conusees,  and  their  heirs,  commonly  are. 

"  How  unsafe  will  it  be  for  any  man  to  meddle  with  these 
estates  ;  for  it  must  not  only  be  inquired,  what  acts  have  been 
done  by  those  that  had  the  particular  estates,  and  were  esteemed 
as  the  owners  of  the  land,  and  whether  these  particular  estates 
continued  in  being  till  the  contingent  estates  came  in  esse ;  but  it 
must  also  be  known  whether  the  conusees  or  feoffees,  or  their 
heirs,  have  done  no  act  before  those  remainders  came  in  esse, 
whereby  these  remainders  should  be  destroyed. 

"  How  dangerous  will  this  be  to  all  farmers  and  tenants  that 
take  leases  under  provisos  and  powers  of  making  leases,  which 
are  common  in  all  settlements ;  for  if  the  conusees  or  feoffees  or 
their  heirs,  have  done  any  such  act,  all  their  leases  and  estates 
will  be  void :  for  if  there  remains  any  estate  or  interest  in  the 
conusees  or  feoffees,  which  must  continue  in  them  to  supply  the 
uses  appointed  and  declared  by  these  leases,  then  that  estate  or 
interest  being  defeated,  those  leases  must  all  be  naught." ( 6') 

(a)  Gilb.  Uses,  3d  edit.  288.  (b)  Ante,  c.  5.  (c)  Hales  v.  Risley,  Pollexf.  383. 


790  Title  XVI.     Remainder.     Ch.  VI.  s.  51—52. 

51.  In  the  Treatise  of  Equity  is  the  following  passage,  which 
is  taken  from  the  subsequent  part  of  Lord  Chief  Justice  Pollex- 
fen's  argument  in  the  case  above  cited. 

"  It  was  formerly  held  that  the  feoffees,  after  the  statute,  had 
a  possibility  to  serve  a  future  use,  when  it  came  in  esse  ; 
283  *  and  that  *  they  should  be  reputed  the  donors  o/  all  the 
contingent  estates,  when  they  vested ;  and  if  the  posses- 
sion was  disturbed,  the  feoffees  should  have  power  to  re-enter,  to 
revive  the  future  uses,  according  to  their  trust ;  but  if  they  bar 
themselves  of  their  entry,  then  this  case,  not  being  remedied  by 
the  statute,  remains  at  common  law.  But  this  opinion  has  been 
since  contradicted ;  and  it  is  now  held  that,  to  the  raising  of  the 
future  uses  after  the  statute,  the  regress  of  the  feoffees  is  not 
requisite,  and  that  they  have  no  power  to  bar  these  future  uses : 
for  the  statute  has  taken  and  transferred  all  the  estate  out  of 
them,  and  they  are  as  mere  instruments ;  so  that  contingent  uses 
do  now,  like  other  contingent  remainders,  depend  upon  the  par- 
ticular estate.  For  to  reduce  the  estates,  conveyed  by  way  of 
use  to  the  common  law,  which  all  sides  agree  was  the  chief  end 
of  the  Statute  of  Uses,  nothing  ought  to  be  left  in  the  feoffees, 
no  need  of  any  scintilla  juris,  or  power  of  reentry,  for  the  benefit 
of  the  contingent  uses,  nor  power  in  the  feoffees  to  destroy  them ; 
but  they  are  mere  conduit  pipes.  And  the  other  conceit  was 
grounded,  as  it  seems,  upon  a  zeal  against  perpetuities  and  con- 
tingent remainders,  there  being  at  that  time  no  received  opinion 
that  the  destruction  of  a  particular  estate  would  destroy  a  con- 
tingent remainder,  till  afterwards  in  Archer's  case  it  was  so 
adjudged."  (a) 

52.  To  these  authorities  may  be  added  that  of  the  late  Mr. 
Fearne,  who  appears  to  have  fully  concurred  in  opinion  with 
Lord  Chief  Justice  Pollexfen  as  to  the  dangerous  consequences 
that  would  follow  from  the  fiction  of  a  scintilla  juris  in  the  feof- 
fees or  releasees ;  and  who  therefore  contends  that,  as  the  Statute 
of  Uses  expressly  enacts,  that  where  any  person,  &c,  is  seised 
to  the  use  of  others,  such  other  persons  shall  be  deemed  and  ad- 
judged in  lawful  seisin,  estate,  and  possession,  &c,  to  all  intents, 
constructions,  and  purposes  in  the  law,  of  and  in  such  like  estates 
as  they  had  in  the  use,  &c.     And  must  not  these  words,  to  all 

(a)  Treatise  of  Equity,  B.  2,  c.  6,  $  1.    Ante,  §  4. 


Title  XVI.     Remainder.     Ch.  VI.  s.  52.  791 

intents,  constructions,  and  purposes  in  the  law,  be  referred  to  the 
legal  properties,  qualities,  and  capacities  of  estates  of  the  like 
degree  or  measure  at  common  law  ?     If  so,  the  cestuis  que  use 
become  entitled  to,  and  take  by  virtue  of  this  statute,  estates 
possessing  and  bearing  in  themselves  all  the  qualities,  properties, 
and  capacities  of  estates  at  common  law,  of  the  like  degree  or 
measure.      Now,  one  of  the  legal  qualities  or  capacities  of  an 
estate  at  common  law  of  the  degree  or  measure  of  free- 
*hold  is,  that  after  it  is  divested  and  turned  to  a  right  of     *284 
entry,  such  right  of  entry  will  support  a  contingent  remain- 
der; and  one  of  the  qualities  or  capacities  of  a  contingent  re- 
mainder at  common  law  is,  a  capacity  of  being  supported  by 
such  right  of  entry.     Why  then  do  not  a  preceding  vested  use, 
of  the  degree  or  measure  of  freehold,  and  a  subsequent  contin- 
gent use,  respectively,  acquire  these  legal  qualities,  properties,  or 
capacities,  amongst  other  qualities  or  properties  of  estates  of  like 
nature  and  degree  at  common  law  ?     If  they  do,  it  is  obvious 
there  can  be  no  necessity  for  any  actual  entry  by  any  body  to 
restore  a  contingent  use,  where  there  subsists  a  right  of  entry  in 
a  cestui  que  use  of  a  preceding  vested  freehold  to  support  it ;  but 
such  right  of  entry  alone  will  preserve  its  capacity  of  vesting  and 
taking  effect.     If  we  deny  this,  we  at  the  same  time  deny  that 
the  cestuis  que  use  have  lawful  seisin,  estate,  and  possession,  &c, 
to  all  intents,  constructions,  and  purposes  in  the  law  of  such 
estate,  as  they  have  in  the  use.  (a)  1 

(b)  Fearne,  Cont.  Rem.  300.     See  also  Sugd.  Pow.  c.  1,  §  3. 


1  This  opinion  of  Mr.  Fearne,  that  there  is  no  necessity  of  an  actual  entry,  in  order 
to  regain  the  seisin  requisite  to  serve  a  contingent  use,  any  more  than  in  the  case  of  a 
contingent  remainder,  has  the  full  concurrence  of  Chancellor  Kent ;  who  holds  that  the 
consideration  paid  by  the  tenant  for  life,  ought,  in  good  sense,  to  enure  to  sustain  the 
deed  through  all  its  limitations,  in  like  manner  as  a  promise  to  B,  for  the  benefit  of 
C,  will  enure  to  the  benefit  of  the  latter,  and  give  him  a  right  of  action.  He  quotes, 
with  entire  approbation,  the  opinion  of  Mr.  Sugden,  that  the  sound  construction  of  the 
Statute  of  Uses  requires  that  limitations  to  uses  should  be  construed  in  like  manner  as 
limitations  at  common  law ;  and  tHat  the  statute  divests  the  estate  of  the  feoffees,  and 
the  estates  limited  prior  to  the  contingent  uses  take  effect  as  legal  estates,  and  the  con- 
tingent uses  take  effect  as  they  arise,  by  force  of  the  original  seisin  of  the  feoffees ;  the 
vested  estates  being  subject  to  open  and  let  in  these  uses.  See  4  Kent,  Coram.  243 — 
246 ;  Sugd.  on  Pow.  ch.  1,  §  3.  In  New  York,  and  as  it  seems,  in  Delaware,  also,  uses 
are  abolished,  and  the  interest  of  the  cestui  que  use  is  turned  into  a  legal  estate.  Sec 
ante,  tit.  11,  ch.  3,  §  3,  note. 


792 


CHAP.  VII. 


TRUSTEES    TO   PRESERVE  CONTINGENT  REMAINDERS. 


Sect.  1.  Invention  of. 

6.  A  Conveyance  by  them  is  a 
Breach  of  Trust. 

8.  Sometimes  not  punished  for 
destroying  Contingent  Re- 
mainders. 


Sect.  11.  Sometimes  directed  to  join  in 
destroying  them. 
16.  In  other  Cases  such  Direction 

refused. 
25.  Bound  to  preserve  the  Tim- 
ber, Sfc. 


Section  1.  Contingent  remainders  being  liable  to  be  defeated 
by  the  alienation  or  forfeiture  of  the  tenant  for  life,  and  also  by 
the  various  acts  before  mentioned ;  a  mode  of  preventing  this 
inconvenience  was  invented,  by  limiting  an  estate  to  trustees  and 
their  heirs,  to  commence  from  the  determination  of  the  particu- 
lar estate,  by  forfeiture  or  otherwise,  in  the  lifetime  of  the  tenant 
for  life,  and  to  continue  during  the  life  of  the  tenant  for  life, 
upon  trust  to  support  the  contingent  remainders  after  limited 
from  being  defeated  or  destroyed ;  by  which  means,  if  the  tenant 
for  life  should  alien  or  forfeit  his  estate,  or  if  it  should  be  merged 
or  destroyed  by  any  other  means,  the  trustees,  having  a  vested 
remainder,  immediately  acquire  a  right  of  entry,  which,  as  has 
been  shown,  is  sufficient  to  support  the  contingent  remain- 
ders. (a)1 

2.  This  improvement  is  generally  attributed  to  Sir  Orlando 
Bridgeman  and  Sir  Geoffrey  Palmer,  who  retired  from  the  bar 
during  the  civil  wars,  and  confined  themselves  to  conveyancing. 
When,  after  the  restoration,  these  persons  came  to  fill  the  first 

(a)  Ante,  c.  1. 

1  The  necessity  of  trustees  to  preserve  contingent  remainders,  in  the  case  of  posthu- 
mous children,  is  expressly  taken  away  by  the  statutes  of  Georgia,  Rev.  St.  1845,  p. 
332,  333,  ch.  12,  art.  3  ;  South  Carolina,  Vol.  II.  p.  542  ;  Delaware,  Rev.  St.  1829,  p.  314  ; 
New  York,  Vol.  II.  p.  1 1,  §  34,  3d  cd. ;  Illinois,  Rev.  St.  1839,  p.  157  ;  Kentucky,  Vol.  I. 
p.  443,  §  11 ;  and  Mississippi,  Rev.  St.  1840,  p.  349,  §  27.  It  is  also  taken  away  by  the 
operation  of  the  statutes  of  several  other  States.  [See  Webster  v.  Cooper,  14  How. 
TJ.  S.  488.] 


Title  XVI.     Remainder.     Ch.  VII.  s.  2—7.  793 

offices  in  the  law,  they  supported  this  invention  within  reasona- 
ble and  proper  bounds ;  and  thus  it  was  introduced  into  general 

use.  (a) 

3.  A  limitation  of  this  kind  is  as  necessary  where  contingent 
remainders  are  created  by  way  of  use,  as  where  they  are 
limited  *  by  a  common-law  conveyance  :  for  if  the  uses  *  286 
are  divested,  we  have  seen  that  an  actual  entry  by  the 
feoffees  or  releasees  to  uses,  or  by  .some  person  having  a  preced- 
ing vested  estate,  is  deemed  necessary  to  revest  the  contingent 
uses.  And  though  that  doctrine  appears  very  doubtful,  yet  it  is 
quite  clear  that  a  right  of  entry  is  necessary  in  those  cases,  (b) 

4.  It  should,  however,  be  observed,  that  where  an  estate  is 
limited  in  a  bargain  and  sale,  or  covenant  to  stand  seised,  to 
a  stranger,  upon  trust  to  preserve  contingent  remainders,  that 
limitation  will  be  void;  because  no  use  will  arise  under  these 
conveyances  without  a  consideration,  (c) 

5.  "Where  the  legal  estate  is  vested  in  trustees,  and  the  con- 
tingent limitations  are  only  trusts,  there  is  no  necessity  to  limit 
an  estate  to  trustees  to  preserve  the  contingent  estates.  It  is 
the  same  in  the  case  of  copyholds,  for  the  estate  of  the  lord 
will  preserve  contingent  remainders  against  forfeiture,  (d) 

6.  It  was  declared  by  Lord  Keeper  Harcourt,  that  where  there 
were  trustees  appointed  by  will  to  preserve  contingent  remain- 
ders to  unborn  sons,  and  they  before  the  birth  of  a  son  joined 
in  a  conveyance  to  destroy  the  remainders,  this  was  a  plain  breach 
of  trust;  that  any  person  taking  under  such  conveyance,  if  volun- 
tarily or  with  notice,  should  be  liable  to  the  same  trusts.  It  was 
objected  that  this  had  been  only  obiter  said  in  equity,  and  that 
there  never  was  any  precedent  of  a  decree  in  such  a  case  :  but 
Lord  Harcourt  said  it  was  very  plain  and  reasonable ;  and  that 
if  there  was  no  precedent  in  this  case,  he  would  make  one.  (e) 

7.  A  person  devised  lands  to  trustees  and  their  heirs,  to  the 
use  of  his  sister  for  life,  remainder  to  the  same  trustees  and 
their  heirs  during  the  life  of  his  sister,  to  preserve  contingent  re- 
mainders, remainder  to  the  use  of  the  first  and  other  sons  of  his 
sister  in  tail  male,  remainder  over  in  fee.  Upon  the  death  of  the 
testator,  his  sister  entered  and  married  ;  she  and  her  husband 
then  joined  with  the  remainder-man  in  fee  in  a  feoffment  and 

'    (a)  2  Bl.  Coram.  172.  (b)  Vide  Doe  v.  Heneagc,  ante,  c.  5.  (c)  Tit.  32,  c.  9  &  10. 

{d)Ante,  c.6,  $9.    2  Ves.  Jun.  209.  (e)  Pye  v.  Gorge,  1  P.  Wms.  128. 

VOL.  I.  67 


794  Title  XVI.     Remainder.     Ch.  VII.  s.  7. 

fine  to  trustees,  to  the  use  of  the  husband  and  his  heirs.  Some- 
time after,  the  trustees  conveyed  the  estate  by  lease  and  release 
to  the  husband  of  the  devisee  for  life  in  fee,  his  wife  being  at 
that  time  ensient  with  a  son.  A  bill  was  filed  by  that  son,  after 
the  death  of  his  mother,  to  have  the  benefit  of  the  will  of  his 

uncle. 
287  *  *  It  was  resolved  by  Lord  King,  assisted  by  Lord  Chief 
Justice  Raymond  and  Chief  Baron  Reynolds  :  — 
First.  That  the  feoffment  and  fine  by  the  devisee  for  life  and 
her  husband  did  not  destroy  the  contingent  remainders  to  the 
first  and  other  sons ;  but  that  the  right  to  the  freehold  in  the 
trustees  supported  them. 

Secondly.  That  when  the  trustees  joined  in  the  lease  and  re- 
lease to  the  husband  of  the  devisee,  for  life  and  his  heirs,  this 
destroyed  the  contingent  remainders. 

Thirdly.  That  the  joining  of  the  trustees  to  destroy  such 
remainders  was  a  plain  breach  of  trust ;  and  though  this  had  not 
been  before  judicially  determined,  yet  it  seemed  to  the  Court,  in 
common  sense,  reason,  and  justice,  to  be  capable  of  no  other 
construction.  For  when  trustees  are  appointed  to  preserve  an 
estate  in  a  family,  and  for  no  other  purpose,  and  they,  instead  of 
preserving  it,  do  a  wilful  act  with  an  intent  and  in  order  to  de- 
stroy it ;  —  how  can  this  be  otherwise  than  a  plain  breach  of 
trust,  or  how  can  it  be  rendered  clearer  than  by  barely  putting 
the  case  ? 

Should  the  Court  hold  it  to  be  no  breach  of  trust,  or  pass  it  by 
with  impunity,  it  would  be  making  proclamation  that  the  trus- 
tees in  all  the  great  settlements  in  England,  were  at  liberty  to 
destroy  what  they  had  been  entrusted  only  to  preserve. 

As  to  the  remedy, — had  the  premises  been  conveyed  to  one 
without  notice,  and  for  a  valuable  consideration,  such  purchaser 
must  have  held  the  lands  discharged  of  the  trust ;  and  the  son  of 
the  marriage,  who  was  injured  by  the  breach  of  trust,  have  taken 
his  remedy  against  the  trustees  only  ;  who  would  have  been  de- 
creed to  purchase  lands,  with  their  own  money,  equal  in  value 
to  the  lands  sold,  and  to  hold  them  upon  the  same  trusts  and 
limitations  as  they  held  those  sold  by  them.  But  even  in  case 
of  a  purchase,  if  the  purchaser  had  notice  of  the  trust  which  the 
trustees  were  subject  to,  as  annexed  to  their  estate,  such  notice 


Title  XVI.     Remainder.     CIi.  VII.  s.  7—9.  795 

would  have  made  him  liable  to  the  same  trust.  So,  if  there  had 
been  a  voluntary  conveyance  made  of  this  estate,  though  with- 
out notice,  the  voluntary  grantee  would  have  stood  in  the  place 
of  the  grantors,  and  have  been  liable  to  the  trust  in  the  same 
manner  as  the  trustees  themselves  wTere.  But  in  the  present 
case  it  was  much  stronger,  for  here  was  not  only  notice  of  the 
trust,  but  the  conveyance  itself  voluntary,  and  made  to 
the  husband  *  of  the  tenant  for  life  ;  so  that  the  lands  *  288 
conveyed  by  these  trustees  must  remain  liable  to  the 
same  trusts  as  they  were  when  the  trustees  joined  in  the  con- 
veyance, (a) 

8.  There  have  been  some  cases  where  a  court  of  equity  has 
refused  to  punish  trustees  for  joining-  in  a  conveyance  to  destroy 
contingent  remainders ;  as  where,  upon  a  subsequent  remainder 
to  the  right  heirs,  a  collateral  relation  only  has  been  affected  by 
it,  there  having  been  no  issue  of  the  marriage.  For,  next  after 
the  parties  to  the  marriage,  the  Court  considers  the  issue  to  be 
the  only  objects  of  the  settlement  and  trusts,  and  pays  less  re- 
gard to  the  remainder  over  to  the  right  heirs,  as  no  immediate 
objects  of  the  consideration  in  the  settlement ;  as  also  where  the 
application  to  the  Court  for  relief  has  been  made  by  one  who 
was  not  at  the  time,  nor  possibly  ever  might  be,  entitled  to  the 
remainder  under  the  words  of  the  limitation,  (b) 

9.  Thus,  where  a  settlement  was  made  in  consideration  of  a 
marriage  and  £3000  fortune,  and  for  settling  the  lands  in  ques- 
tion in  the  name  and  blood  of  the  husband  ;  and  the  lands  were 
limited  to  trustees  in  trust  for  the  intended  husband  for  ninety- 
nine  years  if  he  should  so  long  live,  remainder  to  trustees  during 
his  life  to  support  contingent  remainders,  remainder  to  the  first 
and  other  sons  of  that  marriage,  remainder  to  the  heirs  of  the 
body  of  the  husband,  remainder  to  the  right  heirs  of  the  hus- 
band. The  marriage  took  effect;  the  husband  and  wife,  and 
trustees  to  support,  &c.  by  fine  and  conveyance,  settled  the  lands 
on  the  husband  for  ninety-nine  years  if  he  should  so  long  live, 
remainder  to  trustees  during  his  life  to  support  contingent  re- 
mainders, remainder  to  the  wife  for  her  jointure,  remainder  to  the 
first  and  other  sons  of  the  marriage,  remainder  over  to  several 

(a)  Mansell  v.  Mansell,  2  P.  Wms.  678.    Forrest,  R.  252.    Pearce  i\  Newlyn,  3  Madd.  186. 

(b)  Fearne,  Cont.  Rem.  328. 


796  Title  XVI.     Remainder.     Ch.  VII.  s.  9—10. 

other  persons.  The  husband  and  wife  died  without  leaving  any 
issue.  The  plaintiff,  being  heir  at  law  to  the  husband,  brought 
his  bill  to  set  aside  the  second  conveyance  by  the  trustees,  as 
being  made  in  breach  of  their  trust ;  and  insisted  that  they  were 
trustees,  as  well  for  the  support  of  this  remainder,  as  of  the  re- 
mainder to  the  first  and  other  sons  ;  all  being  contingent  remain- 
ders ;  that  such  conveyances  ought  to  be  set  aside,  as  had  been 
the  practice  of  the  Court. 

Lord  Harcourt  held  it  to  be  so,  as  to  the  first  and  other 
289  *  sons,  *  who  came  in  and  were  to  be  considered  as  purcha- 
sers under  the  marriage  settlement  and  portion ;  and  said 
it  would  be  dangerous  for  any  trustees  to  make  the  experiment 
for  that  it  was  most  certainly  a  breach  of  trust ;  and  if  it  should 
ever  come  in  question,  he  thought  the  Court  would  set  aside  such 
a  conveyance ;  not  but  that,  he  said,  the  case  might  possibly  be 
so  circumstanced,  as  that  the  Court  could  not  relieve  against  it. 
But  where  relief  was  to  be  given  in  such  case,  it  was  only  to 
those  who  came  in  and  claimed  as  purchasers,  as  the  first  and 
other  sons ;  but  all  the  remainders  after  to  the  heirs  of  the  body 
of  the  husband,  and  to  his  right  heirs,  were  merely  voluntary, 
and  not  to  be  aided  in  equity.     The  bill  was  dismissed,  (a) 

10.  A  made  a  feoffment  to  the  use  of  himself  for  ninety-nine 
years,  if  he  so  long  lived,  remainder  to  trustees  and  their  heirs 
during  his  life  to  preserve  contingent  remainders,  remainder  to 
the  use  of  the  heirs  of  his  body,  remainder  to  himself  in  fee. 
A  having  two  sons,  he  and  the  trustees,  together  with  the  eldest 
son,  joined  in  a  feoffment  and  fine  to  B  in  fee,  as  a  security  for 
a  sum  of  money.  The  eldest  son  died  without  issue  ;  the  second 
brought  a  bill  to  set  aside  the  feoffment  and  fine. 

Lord  Cowper  said,  this  was  plainly  a  contingent  remainder, 
being  limited  to  the  heirs  of  the  body  of  A,  who  could  have  no 
heir  during  his  life ;  and  it  was  plain  that  the  feoffment  did,  at 
law,  destroy  the  contingent  remainder,  the  trustees,  who  had 
the  freehold,  having  joined.  But  it  might  be  a  question  whether 
this  was  a  breach  of  trust  in  the  trustees.  It  was  true,  if  the 
eldest  son  joined  in  a  feoffment,  where  the  remainder  in  tail 
was  limited  to  him,  it  prevented  any  breach  of  trust  in  the  trus- 
tees.    But  here  the  limitation  being  to  the  heirs  of  the  body  of 

(a)  Tipping  v.  Pigot,  1  Ab.  Eq.  385. 


Title  XVI.     Remainder.     Ch.  VII.  s.  10—12.         797 

A,  who  could  not  have  an  heir  of  his  body  during  his  own  life  ; 
the  joining  of  the  eldest  son  was  not  in  this  case  so  material ; 
yet  it  seemed  hard  when  the  heir  apparent  joined,  in  a  case 
where  it  would  be  no  breach  of  trust,  if  the  limitation  were  to 
the  eldest  son,  that  it  should  be  a  breach  of  trust  in  respect  to 
the  limitation  to  the  heir.  But  the  trustees,  appointed  to  preserve 
the  contingent  remainders,  ought  not  to  join  in  destroying  those 
remainders,  which  would  be  acting  the  reverse  of  their  trust. 
He  was,  however,  of  opinion,  that  the  second  son,  though  he 
had  survived  the  eldest,  had  no  right  to  a  bill  in  his  father's  life- 
time ;  for  he  neither  was,  nor  possibly  ever  would  be,  the 
*  heir  of  his  father,  unless  he  survived  his  father,  which  *  290 
was  uncertain,  (a) 

11.  There  are  also  some  instances  of  a  court  of  equity,  exer- 
cising a  discretionary  power  of  directing  trustees  for  preserving 
contingent  remainders  to  join  with  the  tenant  for  life,  or  his  first 
son,  in  barring  the  subsequent  contingent  limitations.  This, 
however,  has  only  happened  under  peculiar  circumstances,  either 
of  pressure  to  discharge  incumbrances  prior  to  the  settlement,  or 
in  favor  of  creditors,  where  the  settlement  was  voluntary  ;  or  for 
the  advantage  of  the  persons  who  were  the  first  objects  of  the 
settlement,  as  to  enable  the  eldest  son  to  make  a  settlement  upon 
an  advantageous  marriage,  (b) 

12.  The  defendant,  Richard  Sprigg,  (c)  made  a  mortgage  of  the 
lands  in  question  for  the  term  of  1000  years,  to  secure  £1000, 
and  also  confessed  a  judgment  for  £150.  Afterwards,  upon  his 
marriage,  he  settled  the  same  lands  to  the  use  of  himself  for  life, 
remainder  to  trustees  to  preserve  contingent  remainders,  remain- 
der to  his  wife  for  life,  remainder  to  his  first  and  other  sons  in 
tail,  remainder  to  his  own  right  heirs.  There  being  no  issue  of 
the  marriage,  Sprigg  articled  to  sell  the  lands  to  the  plaintiff, 
who  brought  his  bill  setting  out  these  facts ;  and  that  the  trus- 
tees refused  to  join,  and  the  mortgagee  threatened  to  enter ; 
praying  a  specific  execution  of  the  agreement,  and  that  the  trus- 
tees might  join  in  conveyances. 

Sprigg  and  his  wife,  by  their  answer,  set  out  the  settlement, 
that  they  had  been  married  six  years,  and  had  no  issue  ;  con- 
fessed the  contract  with  the  plaintiff,  and  that  they  were  willing 

(«)  Else  v.  Osborne,  1  P.  Wms.  387.     2  P.  Wms.  683. 

(b)  Fearne,  Cont.  Rem.  331.  (c)  Piatt  v.  Sprigg,  2  Vera.  303. 

67* 


798  Title  XVI.     Remainder.     Ch.  VII.  5.  12—14. 

to  perform  it.  The  trustees  set  out  the  marriage  settlement,  and 
that  they  were  willing  to  do  what  the  Court  should  direct,  being 
indemnified. 

For  the  plaintiff  it  was  insisted  that  the  settlement  being  only 
of  an  equity  of  redemption,  the  mortgagee  was  not  bound  there- 
by, but  might  enter  and  foreclose ;  which  would  bind,  though 
there  should  be  issue  afterwards  born ;  and  the  husband,  not  being 
able  to  redeem,  a  sale  was  absolutely  necessary,  otherwise  the 
benefit  of  redemption  would  be  lost,  as  well  to  the  husband  and 
wife,  as  to  the  issue,  in  case  there  should  be  any. 

The  Master  of  the  Rolls  (Sir  J.  Trevor)  decreed  the  trustees 

to  join,  and  to  be  indemnified,  the  settlement  being  only 

291  *     of  an  equity  *  of   redemption ;   the  wife  being  in  court, 

and  examined  whether  she  freely  consented  thereto  or  not. 

13.  J.  S.,  by  marriage  settlement,  was  tenant  for  ninety-nine 
yeaj.\s,  if  he  should  so  long  live,  remainder  to  trustees  and  their 
heirs  during  his  life,  to  support  contingent  remainders  ;  remainder 
to  his  first  and  other  sons  in  tail  male ;  remainder  to  trustees  for 
five  hundred  years,  in  trust,  to  raise  portions  for  daughters,  if 
there  were  no  issue  male.  J.  S.  had  issue  a  son,  who  being  of 
age,  and  about  to  marry,  he  and  his  father  brought  a  bill  to  have  the 
trustees  to  join  in  making  an  estate,  in  order  to  suffer  a  common 
recovery,  that  he  might  be  enabled  to  make  a  settlement  on  his 
marriage. 

It  was  urged,  that  the  trustees  were  only  trustees  for  the  son, 
and  ought  to  execute  estates  as  he  should  direct,  he  having  the 
inheritance  in  him  ;  and  that  the  end  of  the  trust  was  to  hinder 
the  father  from  defeating  the  son  of  the  estate.  On  the  other 
side  it  was  said  that  these  trustees  were  not  only  trustees  for  the 
eldest  son,  but  were  designed  as  a  guard  for  the  whole  settlement ; 
that  the  mother  being  living,  there  might  be  other  children  ;  and 
for  the  trustees  to  join  would  be  a  breach  of  trust.  There  being 
a  daughter  in  this  case,  Lord  Harcourt  directed  that,  upon  giving 
security  for  the  daughter's  portion,  the  trustees  should  join  in  the 
recovery,  (a) 

14.  A  person  after  marriage,  made  a  voluntary  settlement  to 
himself  for  life;  remainder  to  trustees,  to  support  contingent 
remainders  ;  remainder  to  his  first  and  other  sons  in  tail ;  remain- 
der to  himself  in  fee.     He  afterwards  made  a  conveyance  of  his 

(a)  Frewin  v.  Charlton,  1  Ab.  Eq.  386. 


Title    XVI.     Remainder.     C/i.  VII.   s.   14—15.        799 

estate  to  other  trustees,  for  payment  of  his  debts.  The  creditors 
brought  their  bill ;  and  inter  alia  insisted  that  the  trustees  for 
preserving  contingent  remainders  should  join  in  a  sale,  to  destroy 
the  contingent  remainders. 

The  cause  came  on  by  consent,  before  Sir  Joseph  Jekyll,  who 
took  time  to  consider  of  it;  alleging,  that  though  in  the  case 
of  Sir  Thomas  Tipping,  where  trustees  had  joined  in  cutting  off 
remainders,  created  by  a  voluntary  settlement,  the  Court,  on  a 
bill  brought  by  a  remote  relation,  had  refused  to  punish  them, 
as  distinguishing  between  a  voluntary  settlement  and  one  made 
on  a  valuable  consideration;  yet  he  had  not  known  a 
precedent  *  where  the  Court  ever  decreed  the  trustees  to  *  292 
join  in  destroying  the  contingent  remainders,  this  being 
the  reverse  of  the  purpose  for  which  they  were  at  first  insti- 
tuted, (a) 

15.  Upon  the  marriage  of  the  plaintiff,  Mr.  Wilmington,  who 
was  the  eldest  son  of  Sir  Francis  Wilmington,  the  family  estate 
was  settled  upon  the  plaintiff  for  ninety-nine  years,  if  he  should 
so  long  live,  remainder  to  trustees  during  his  life,  remainder  to 
the  first  and  other  sons  of  that  marriage  in  tail  male,  remainder 
to  the  first  and  other  sons  of  any  other  marriage,  remainder  over. 
Mr.  Wilmington  had,  by  his  lady,  who  was  then  dead,  one  son 
of  age,  and  for  whose  marriage  he  was  in  treaty.  The  surviving 
trustee  for  preserving  contingent  remainders  being  dead,  leaving 
an  infant  heir,  Mr.  W.  and  his  son  brought  a  bill  against  him, 
praying  that  he  might  be  directed  to  join  in  making  a  tenant  to 
the  precipe,  in  order  to  a  common  recovery  for  making  a  settle- 
ment on  the  son's  marriage. 

On  the  hearing,  Lord  Parker  declared  that  the  trustee  being 
appointed  to  preserve  contingent  remainders,  and  here  being  a 
vested  remainder  in  tail,  if  this  were  for  the  good  of  the  family, 
he  did  not  see  but  such  trustee  might  lawfully  join  ;  and  referred 
it  to  the  Master  to  state  whether  this  was  for  the  good  of  the 
family. 

The  Master  reported  that  the  son  was  in  treaty  for  the  mar- 
riage above  mentioned ;  that  it  was  a  beneficial  marriage  for  the 
family ;  and  that  it  was  necessary  a  new  settlement  should 
be  made  of  the  estate,  which  could  not  be  done  without  a  re- 
covery. 

(a)  Baseett  v.  Olapham,  1  P.  Wins.  358.    Ante,  §  9. 


800  Title  XVI.     Remainder.     Ch.  VII.    s.  15—18. 

Lord  Parker  said,  it  might  be  greatly  mischievous  to  a  family 
if  such  a  trustee  should  stand  out,  and  not  join  with  the  father 
and  son  in  cutting  off  the  old  settlement,  and  making  a  new 
one.  This  was  plainly  for  the  benefit  of  the  family ;  for  by  the 
intended  settlement,  the  son  was  to  be  but  tenant  for  life,  instead 
of  tenant  in  tail,  so  that  it  was  a  means  of  preserving  the  estate 
longer  in  the  family.  Also  the  wife  of  Mr.  Wilmington,  the 
father,  being  dead,  there  was  an  end  of  the  contingent  remainders 
by  that  marriage ;  as  to  any  remainders  by  another  marriage,  no 
remainder  not  in  esse  ought  to  be  so  much  regarded  as  the  re- 
mainder in  tail,  which  was  actually  vested  in  Mr.  Winnington, 

the  son.  He,  therefore,  directed  that  the  trustee  should 
293  *    join  with  *  the  father  and  son,  in  order  to  make  a  new 

settlement ;  and  that  the  Master  should  direct  a  proper 
conveyance,  in  which  the  trustee  should  join,  (a) 

16.  But,  however,  the  Court  of  Chancery  may  judge  it  proper 
to  direct  trustees  to  concur  in  destroying  contingent  remainders, 
under  circumstances  like  those  in  the  above  cases ;  yet  it  has 
repeatedly  denied  the  same  interposition  in  cases  where  such 
ingredients  were  wanting. 

17.  By  a  marriage  settlement,  lands  were  limited  to  the  hus- 
band and  wife  for  life,  remainder  to  trustees  to  preserve  contingent 
remainders,  remainder  to  their  first  and  other  sons  in  tail  male. 
The  husband  and  wife  having  been  married  twelve  years,  and  no 
issue,  and  the  husband  being  in  debt,  they  brought  a  bill,  pray- 
ing that  they  might  be  enabled  to  sell  part  of  the  lands  for  the 
payment  of  them ;  to  which  the  trustee  consented,  provided  he 
might  be  indemnified. 

Though  it  was  urged  that  there  were  precedents  of  like  cases, 
yet  Lord  Keeper  North  refused  to  make  any  such  decree  ;  saying, 
he  had  known  people  married  near  twenty  years  without  issue, 
who  after  had  children,  (b) 

18.  By  a  settlement  on  the  marriage  of  the  defendant,  John 
Lawton,  senior,  lands  were  limited  to  his  use  for  ninety-nine 
years,  if  he  should  so  long  live,  remainder  to  trustees,  of  which 
Mr.  Montague  was  the  survivor,  for  the  life  of  John  Lawton, 
senior,  to  preserve  contingent  remainders,  remainder  to  his  wife 
for  life,  remainder  to  the  first  and  other  sons  of  the  marriage  in 

(a)  Winnington  ».  Foley,  1  P.  Wins.  536.  (b)  Davies  v.  Weld,  1  Ab.  Eq.  386. 


Title  XVI.     Remainder.     Ch.  VII.  s.  18—19.  801 

tail  male,  remainder  over.  The  wife  was  dead ;  and  the  de- 
fendants, Edward  and  John  Lawton,  were  the  only  issue  of  the 
marriage.  John  Lawton,  the  father,  having  mortgaged  the  prem- 
ises to  the  plaintiff,  and  Edward  Lawton,  the  son,  being  come  of 
age,  the  father  and  son  entered  into  articles  with  the  plaintiff, 
and  thereby  covenanted  that  they  would  suffer  a  recovery,  and 
procure  Mr.  Montague,  the  surviving  trustee,  to  join  therein.  But 
Mr.  Montague  refusing,  the  plaintiff  brought  his  bill  to  compel 
a  specific  performance  of  the  covenant,  and  that  Mr.  Montague 
might  join  in  suffering  the  recovery. 

Lord  King  asked  if  the  younger  brother  would  consent  that 
the  trustees  should  join.  Being  told  that  he  refused,  he  said  he 
would  not  decree  the  trustee  to  join ;  for  that  he  would 
not  take  *  away  any  man's  right.  It  was  insisted  that  *294 
the  same  was  done  in  the  case  of  Wilmington  v.  Foley, 
to  which  he  said  he  would  also  do  so,  were  the  like  case  to  come 
before  him;  in  that  case,  the  trustee  was  decreed  to  join,  in 
order  to  preserve  the  estate  in  the  family ;  but  in  the  principal 
case  they  would  have  the  same  done  with  a  view  only  to  alien. 
The  bill  was  dismissed,  (a) 

19.  A  bill  was  brought  to  compel  trustees  to  join  in  a  sale, 
which  would  destroy  the  contingent  remainders  in  a  settlement, 
the  limitations  of  which  were  to  the  husband  for  ninety -nine 
years,  if  he  so  long  lived,  remainder  to  the  wife  for  her  life,  re- 
mainder to  trustees  to  preserve  contingent  remainders,  remainder 
to  the  heirs  begotten  on  the  body  of  the  wife,  remainder  to  the 
heirs  of  the  husband.  And  the  first  declaration  under  it  was, 
that  it  was  the  intention  of  the  settlement  to  make  a  provision 
for  the  children  of  the  marriage. 

Lord  Hardwicke  said,  there  were  many  cases  in  which  the 
Court  would  compel  trustees  to  join  in  such  a  conveyance  as 
would  destroy  contingent  remainders;  but  then  it  must  be  in 
some  measure  to  answer  the  uses  originally  intended  by  the  set- 
tlement;  and  had  been  usually  done  in  the  case  of  old  set- 
tlements only,  as  in  Winnington  v.  Foley.  But  he  believed  there 
was  no  instance  where  they  had  compelled  such  trustees  to  join 
with  a  father,  termor  for  ninety-nine  years,  and  his  son,  to  sell 
the  estate,  (b) 

(a)  Townsend  v.  Lawton,  2  P.  Wms.  379.    Ante,  §  15. 

(b)  Symmance  v.  Tattam,  1  Atk.  C13.     Ante,  §  15. 


802  Title  XVI.     Remainder.     Ch.  VII.  s.  20. 

20.  Sir  John  Hoskins  devised  his  real  estate  to  his  eldest  son, 
Bennett  Hoskins,  for  ninety-nine  years,  if  he  should  so  long  live, 
remainder  to  trustees  during  the  life  of  Bennett,  to  preserve  con- 
tingent remainders,  remainder  to  the  first  and  other  sons  of  Ben- 
nett in  tail  male,  remainder  to  the  testator's  second  son,  Hunger- 
ford  Hoskins,  for  ninety-nine  years,  if  he  should  so  long  live, 
remainder  to  trustees  during  the  life  of  Hungerford,  to  preserve 
contingent  remainders,  remainder  to  his  first  and  other  sons  in 
tail  male,  with  like  remainders  to  his  younger  sons,  remainder  to 
his  own  right  heirs  ;  and  the  testator  empowered  his  sons  to  re- 
voke the  uses  limited  by  his  will,  and  to  appoint  new  uses,  pro- 
vided they  limited  the  same  to  their  sons  for  ninety-nine  years, 
and  in  strict  settlement ;  with  several  other  powers  and  directions 
for  the  effectuating  his  intention  of  preserving  the  estate  in  his 
family.  Bennett  Hoskins  died  without  issue ;  the  defend- 
295  *  ant,  Sir  Hungerford  *  Hoskins,  coming  into  possession  of 
the  estate,  had  issue  an  only  son,  Chandos  Hoskins,  who 
had  attained  his  age  of  twenty-one  ;  and  borrowed  several  sums 
of  money  from  the  plaintiffs,  for  which  he  and  his  son  became 
bound.  Soon  after  the  son's  being  thus  bound  for  his  father, 
articles  were  entered  into  between  Sir  Hungerford  and  Chandos 
Hoskins  on  the  one  part,  and  the  plaintiffs  on  the  other,  whereby, 
after  reciting  the  debts,  and  that  Chandos  was  bound  for  the 
payment  of  them,  as  surety  for  his  father,  Sir  Hungerford  and 
Chandos  covenanted  with  the  plaintiffs  to  convey  the  estate  in 
question  to  them  and  their  heirs,  upon  trust,  to  sell  the  same, 
and  apply  the  money  to  the  payment  of  their  debts,  and  to  pay 
the  surplus  thereof  to  Sir  Hungerford.  The  bill  was  brought 
against  Sir  Hungerford  and  ^Chandos  for  a  specific  performance 
of  the  articles,  and  likewise'  against  the  heir  of  the  surviving 
trustee  for  preserving  contingent  remainders  ;  that  he  should  join 
in  a  conveyance  for  making  a  tenant  to  the  prcecipe,  in  order  to 
the  suffering  a  recovery  ;  and  also  to  have  the  power  of  revoca- 
tion declared  void  as  to  all  the  remainder-men  under  the  will  of 
Sir  John  Hoskins. 

Lord  Hardwicke.  "  Had  this  case  depended  upon  the  power 
of  revocation,  I  should  not  have  determined  it  without  the  assist- 
ance of  the  Judges  ;  but  the  previous  point  is,  whether  the  Court 
will  compel  the  trustees  to  join  in  enabling  the  father  and  son  to 
suffer  a  recovery.     Indeed,  thus  much  use  may  be  made  of  the 


Title  XVI.     Remainder.     Ch.  VII.  s.  20.  803 

power  of  revocation,  that  it  plainly  shows  Sir  John  Hoskins 
intended  to  make  as  strict  a  settlement  as  he  could,  and  to  pre- 
serve the  estate  in  his  name  and  blood  as  long  as  he  was  able  ; 
and  where  clauses  of  this  nature,  tending  to  perpetuities,  have 
been  inserted  in  deeds  or  wills,  it  has  been  a  prevailing  motive 
with  the  Court  to  supply  defects  in  other  parts  of  the  deeds  or 
wills ;  and  to  make  as  strict  a  settlement  as  possible ;  as  was 
done  by  Lord  Cowper  in  Stamford  and  Sir  J.  Hobart's  case  (a) 
upon  Serjeant  Maynard's  will,  where  trustees  to  preserve  contin- 
gent remainders  were  inserted  by  the  Court. 

"  It  has  been  admitted  in  the  present  case,  that  there  is  no 
precedent  for  such  a  decree  as  is  prayed  by  the  bill ;  and  I  do 
not  think  the  present  case  such  as  will  warrant  me  in  making 
one.  Trustees  of  this  kind  have  often  been  called  honorary 
trustees,  i.  e.  that  such  a  trust  is  reposed  in  them  as  they 
may  exercise  *  at  discretion  ;  and  that,  therefore,  the  Court  *  296 
ought  not  to  consider  them  as  guilty  of  a  breach  of  trust 
for  such  exercise  of  their  discretion.  But  since  the  case  of  Man  sell 
v.  Mansell,  (b)  where  it  was  determined  to  be  a  breach  of  trust,  and 
to  affect  a  purchaser  with  notice,  that  notion  has  been  laid  aside. 
I  will  not  say  that  the  Court  would  decree  the  trustees  joining 
in  such  a  case  as  the  present  to  make  a  tenant  to  the  pr&cipe,  a 
breach  of  trust  in  them  ;  that  being  a  quite  different  question. 

"  It  has  been  said  that  this  kind  of  settlement,  where  the 
father  is  made  but  tenant  for  years,  is  very  inconvenient,  and 
tends  to  perpetuities ;  but  I  do  not  know  that  this  doctrine  has 
been  ever  laid  down  by  the  Court.  To  some  public  purposes 
these  settlements  may  be  inconvenient ;  however,  they  were  for- 
merly very  common,  and  no  objection  made  to  the  propriety  of 
them.  Now  what  was  the  reason  of  such  a  limitation  ?  Most 
certainly  to  preserve  the  estate  longer  from  alienation  than  if  the 
father  was  made  tenant  for  life;  because  in  this  last  case  the 
father  and  son  might  pass  by  the  trustees,  and  suffer  a  recovery 
without  them  ;  and  therefore  the  estate  was  limited  for  years,  to 
prevent  that  consequence  ;  and  also  for  that  the  son  being  greatly 
under  the  father's  power  for  his  maintenance,  the  father  might 
distress  and  force  him  to  join  in  selling  the  estate,  where  the 
freehold  is  in  the  father;    whereas  by  vesting  the    freehold  in 

(a)  3  Bro.  Purl.  Ca.  31.  (l>)  Ante,  §  7. 


804  Title  XVI.     Remainder.     Ch.  VII.  s.  20—21. 

trustees,  that  consequence  is  likewise  avoided.  Now  the  occa- 
sion for  suffering  a  recovery  in  the  present  case,  is  considerable. 
It  is  not  for  the  making  any  marriage  settlement,  nor  upon 
account  of  any  particular  misfortune  in  the  family,  nor  for  pay- 
ment of  the  son's  debts,  but  for  payment  of  the  father's  ;  the 
son  being  only  a  surety  for  the  father,  and  entering  into  bond 
but  just  before  the  making  of  the  articles  ;  and  it  is  very  proba- 
ble the  estate  was  settled  in  this  manner  by  Sir  John  Hoskins  to 
guard  against  the  very  event  of  the  son's  being  drawn  into  a  sale 
of  the  estate  for  payment  of  the  father's  debts.  It  has  been  said 
that  the  son,  as  tenant  in  tail,  is  owner  of  the  estate,  and  that  it 
is  not  necessary  to  make  the  subsequent  remainder-man  party  to 
bills  relating  to  his  estate.  But  where  a  man  is  only  tenant  in 
tail  in  remainder,  and  has  not  the  freehold  in  him,  I  do  not  think 
he  is  to  be  considered  as  owner ;  and  in  all  cases  the  owner  of 
the  freehold  must  be  before  the  Court. 

"  The  precedents  of  decreeing  trustees  to  join  in  suffer- 
297*  ing  Recoveries  are  not  many,  and  have  not  gone  so  far  as 
the  present  case.  In  that  of  Mr.  Wilmington,  (a)  the  end 
was  the  making  a  marriage  settlement,  which  was  carrying  on 
the  donor's  intention,  and  not  to  put  the  estate  out  of  the  family. 
It  was  objected,  that  the  trustees  joining  with  the  father  would 
be  no  breach  of  trust  in  them,  and  that  the  Court  would  not 
decree  them  to  make  satisfaction,  nor  affect  a  purchaser  with  the 
trust ;  and  that  therefore  what  is  prayed  by  the  plaintiff's  bill 
should  be  decreed ;  but  there  is  a  medium  between  the  two 
propositions,  for  the  Court  will  not  always  decree  a  man  to  do 
what  would  not  possibly  be  a  breach  of  trust  in  him  if  he  did  it. 
The  reasons  and  motives  of  a  trustee's  joining  would  be  con- 
sidered in  determining  whether  he  was  or  was  not  guilty  of  a 
breach  of  trust.  But  as  the  trust  in  question  was  most  probably 
created  to  prevent  the  father  and  son  from  selling  or  disposing  of 
the  estate,  as  soon  as  he  came  of  age,  the  decreeing  the  trustees 
to  join  in  suffering  a  recovery  would  be  decreeing  them  to  act 
directly  contrary  to  their  trust."     The  bill  was  dismissed,  (b) 

21.  Francis  Barnard  devised  freehold  and  copyhold  estates  to 
T.  C.  Barnard  for  ninety-nine  years,  if  he  should  so  long  live, 
remainder  to  the  defendant  Large  during  the  life  of  T.  C.  Bar- 

(«)  Ante,  $  15.  (b)  Woodhouse  v.  Hoskins,  MSS.  Rep.    S  Atk.  22. 


Title  XVI.     Remainder.     Ch.  VII.  5.  21—22.  805 

nard,  in  trust  to  preserve  contingent  remainders,  remainder  to 
the  first  and  other  sons  of  T.  C.  Barnard  in  tail  male,  remainder 
to  J.  Wall  in  fee.  T.  C.  Barnard  had  issue  only  one  son,  who 
attained  twenty-one  years,  the  father  and  son  filed  a  bill  against 
Large  the  trustee,  and  Wall  the  remainder-man,  stating  that  they 
were  desirous  of  suffering  a  recovery,  and  of  limiting  the  estate 
so  as  to  preserve  the  contingent  remainders  to  the  second  and 
other  sons  of  T.  C.  Barnard ;  and  praying  that  Large  the  trustee, 
might  be  decreed  to  join  in  making  a  tenant  to  the  praecipe  for 
that  purpose  ;  submitting  to  declare  the  uses  of  the  recovery  to 
the  second  and  other  sons  of  T.  C.  Barnard,  by  way  of  contin- 
gent remainders,  as  limited  by  the  will;  and  to  limit  an  estate  to 
a  trustee,  for  the  purpose  of  supporting  and  preserving  those  con- 
tingent remainders. 

Sir  T.  Sewell,  M.  R.,  observed,  that  with  respect  to  remain- 
ders to  remote  relations  in  settlements,  where  the  persons  to 
whom  they  were  limited  were  not  the  immediate  objects  of  the 
parties,  or  where  they  stand  in  opposition  to  the  first 
tenant  in  *tail;  desiring  a  reasonable  benefit,  consistent  *298 
with  the  intentions  of  the  creator  of  the  limitations,  their 
pretensions  had  not  been  much  considered ;  but  in  the  present 
case  all  took  as  volunteers,  and  were  all  equally  to  be  attended 
to.  He  then  considered  the  several  cases  on  this  subject,  and 
said  that,  from  a  review  of  them  all,  it  seemed  that  when  the 
eldest  son,  tenant  in  tail,  is  of  age,  and  about  to  marry,  and 
thereby  continue,  instead  of  destroying  the  purposes  of  the  settle- 
ment, and  in  some  cases  where  there  has  been  particular  distress, 
under  particular  circumstances,  which  ought  to  have  induced  the 
trustee  to  join,  the  Court  had  interfered ;  otherwise  not.  That 
in  the  principal  case  he  was  called  upon  to  disturb  the  testator's 
disposition,  merely  for  the  sake  of  disturbing  it ;  for  which  he 
saw  no  reason  ;  and  dismissed  the  bill  with  costs,  (a) 

22.  It  is  observable  that  in  the  two  last  cited  cases,  a  distinc- 
tion was  made  between  punishing-  trustees  for  joining  to  destroy 
contingent  remainders,  and  compelling  them  to  join.  This  dis- 
tinction seems  to  flow  from  the  supposing  any  discretion  at  all  in 
the  trustees ;  because  there  may  be  circumstances  sufficient  to 
jugtify,  though  short  of  an  obligatory  call  for  such  an  exercise  of 

(a)  Barnard  v.  Large,  Amb.  774.   2  P.  Wms.  084,  note.   (Osbrey  r.  liury,  1  B.  &  Beat.  58.) 

vol.  i.  68 


806  Title  XVI.     Remainder.     Ch.  VII.  s.  22—24. 

their  discretion.  And  Mr.  Fearne  has  observed,  that  however 
this  may  be,  it  seemed  the  safest  way  for  trustees  not  to  act, 
except  in  the  clearest  cases,  without  the  direction  of  the  Court 
of  Chancery  ;  and  recommends  to  their  discretion  the  words  of 
Lord  Harcourt  in  Pye  v.  Gorge,  "  That  it  would  be  a  dangerous 
experiment  for  trustees  in  any  case  to  destroy  remainders,  which 
they  were  appointed  by  the  settlement  to  preserve."  [a) 

23.  In  the  following  modern  case  it  was  held  that  trustees,  to 
preserve  contingent  remainders,  joining  in  a  recovery,  was  not  a 
breach  of  trust. 

24.  Upon  a  bill  for  the  specific  performance  of  a  contract  for 
the  sale  of  an  estate,  an  objection  was  taken  to  the  Master's  re- 
port approving  of  the  title. 

The  abstract  stated  indentures  of  lease  and  release  in  1693, 
previous  to  the  marriage  of  William  Levinz  and  Anne  Buck,  by 
which  Sir  Creswell  Levinz,  and  "William  Levinz,  his  son  and 
heir  apparent,  conveyed  to  trustees  and  their  heirs,  to  the  use  of 
"William  Levinz  for  ninety-nine  years,  if  he  so  long  lived,  with 
remainder  to  trustees  and  their  heirs,  for  the  life  of 
299  *  William  *  Levinz,  in  trust  to  preserve  contingent  remain- 
ders ;  remainder  to  the  first  and  other  sons  of  the  marriage 
in  tail  male  ;  remainder  in  case  William  Levinz  should  die  with- 
out leaving  any  issue  male  then  born  and  alive,  and  leaving  his 
wife  with  child,  to  such  after-born  child  or  children,  if  a  son  or 
sons ;  remainder  to  William  Levinz,  brother  of  Sir  Creswell 
Levinz,  for  one  hundred  and  twenty  years,  if  he  should  so  long 
live ;  remainder  to  trustees  to  preserve  contingent  remainders ; 
remainder  to  his  first  and  other  sons  in  tail  male  ;  remainder  to 
Sir  Creswell  in  fee.  The  issue  of  the  marriage  was  one  son, 
William  Levinz,  who  attained  the  age  of  twenty-one  in  1734, 
and  three  daughters,  one  of  whom  died  unmarried. 

The  abstract  further  stated  that,  by  indentures  of  bargain  and 
sale  in  1734,  William  Levinz  and  his  son,  and  the  heir  of  the 
surviving  trustee  for  preserving  contingent  remainders,  conveyed 
to  a  tenant  to  the  prcecipe,  for  the  purpose  of  suffering  a  re- 
covery, to  enure  to  the  use  of  William  Levinz  the  father,  for 
life,  remainder  to  the  son  in  tail  general,  remainder  to  the  right 
heirs  of  the  father ;  with  power  to  the  father  and  son  jointly,  or 

(a)  Fearne,  Cont.  Kem.  493.    2  P.  AVms.  684. 


Title  XVI.     Remainder.     Ch.  VII.  s.  24.  807 

to  the  survivor,  to  revoke  the  uses,  and  to  sell  or  declare  new 
uses. 

The  plaintiff  was  seised  in  fee  under  conveyances  and  devises 
derived  from  this  title.  The  objection  was,  that  the  heir  at  law 
of  the  surviving  trustee  for  preserving  contingent  remainders  in 
the  settlement  of  1693,  had  been  guilty  of  a  breach  of  trust  in 
joining  with  William  Levinz  the  father  and  his  son,  in  the  deed 
of  1734,  for  making  a  tenant  to  the  precipe,  for  suffering  a 
recovery  of  the  estate,  and  thereby  destroying  the  remainders, 
unless  the  plaintiff  could  show  that  William  Levinz  the  younger, 
was  dead  without  issue ;  and  also  that  there  was  a  failure  of 
issue  male  of  William  Levinz,  the  nephew  of  Sir  Creswell ;  and 
also  that  Sir  Creswell  did  not  by  his  will  dispose  of  the  reversion 
in  fee. 

Lord  Eldon  said,  it  was  agreed  on  all  sides  that  a  good  legal 
title  to  the  estate  could  be  made.  The  question  was,  whether, 
under  the  circumstances,  that  title,  good  at  law,  would  also  be  a 
good  equitable  title  ;  or,  putting  it  in  another  shape,  whether 
there  was  in  the  year  1734  such  a  breach  of  trust  committed,  in 
the  execution  of  the  conveyance  of  that  date,  that  supposing  any 
person  descended  from  the  son  of  William  Levinz,  that  person 
could  now,  allowing  for  all  incapacities  of  infancy  or 
otherwise,  *  claim  under  the  instrument  executed  in  the  *  300 
preceding  century  ;  and  insist  in  this  Court  that  there  was 
that  sort  of  breach  of  trust  upon  which  he  could  say  that  the 
equitable  estate  belonged  to  him,  however  good  the  legal  title 
might  be  in  the  vendor.  (And  he  was  of  opinion  that  there  was 
no  such  breach  of  trust.)  (a)1 

(a)  Moody  v.  Walters,  16  Ves.  283. 


i  "  It  is  not  a  little  difficult,"  said  Mr.  Justice  Story,  "  to  ascertain  from  the  authori- 
ties the  true  nature  and  extent  of  the  duties  and  liabilities  of  trustees  to  preserve  con- 
tingent remainders  ;  and  in  what  cases  they  may  or  ought  to  join  in  conveyances  to 
destroy  them,  or  not,  Lord  Eldon  has  expressed  himself  unable  to  deduce  the  true 
principle  from  them.  His  language  is :  '  The  cases  are  uniform  to  this  extent ;  that  if 
trustees,  before  the  first  tenant  in  tail  is  of  age,  join  in  destroying  the  remainders,  they 
arc  liable  for  a  breach  of  trust ;  and  so  is  every  purchaser  under  them  with  notice.  But, 
when  we  come  to  the  situation  of  trustees  to  preserve  remainders,  who  have  joined  in  a 
recovery  after  the  first  tenant  in  tail  is  of  age,  it  is  difficult  to  say  more,  than  that  no 
Judge  in  equity  has  gone  the  length  of  holding,  that  he  would  punish  them,  as  for  a 
breach  of  trust ;  even  in  a  case,  where  they  would  not  have  been  directed  to  join.  The 
result  is,  that  they  seem  to  have  laid  down,  as  the  safest  rule  for  trustees,  but  certainly 


808  Title  XVI.     Remainder.     Ch.  VII.  s.  25—26. 

301*  *  25.  Trustees    to   preserve  contingent  remainders  are 

not  only  bound  to  preserve  all  the  limitations  created  by 
the  settlement ;  but  also  to  protect  the  inheritance,  and  to  keep  it 
as  entire  as  possible.  Now,  as  the  inheritance  consists  of  land, 
timber,  mines,  &c,  all  these  are  under  the  protection  of  the  trus- 
tees ;  and  in  the  execution  of  this  trust,  they  are  entitled  to  every 
assistance  which  a  court  of  equity  can  afford  them.  And  where 
there  is  a  limitation  to  trustees  to  preserve  contingent  remainders, 
the  Court  of  Chancery  will  not  permit  a  tenant  for  ninety- 
302*  nine  years,  *if  he  shall  so  long  live,  to  join  with  the 
person  entitled  to  the  inheritance  for  the  time  being,  to 
cut  down  timber.  This  doctrine  was  laid  down  by  Lord  Hard- 
wicke,  in  the  following  case  lately  published  from  his  own 
manuscripts,  (a)1 

26.  Richard  Bovey  Garth,  being  tenant  for  ninety-nine  years, 
if  he  should  so  long  live,  without  impeachment  of  waste,  volun- 
tary waste  excepted,  with  remainder  to  trustees  during  his  life 
to  preserve  contingent  remainders,  remainder  to  his  first  and 
other  sons  in  tail  male,  with  the  ultimate  remainder  to  Sir  John 
Hind  Cotton  in  fee,  and,  having  no  children,  he  entered  into  an 
agreement  with  Sir  John  Hind  Cotton  for  cutting  down  part  of 
the  timber  then  standing  on  the  estate,  the  money  to  arise  from 
such  timber  to  be  divided  between  Bovey  and  Sir  J.  H.  Cotton. 

A  quantity  of  timber  was  felled  in  consequence  of  this  agree- 
ment, and  Sir  J.  H.  Cotton  received  a  part  of  the  money. 

Some  years  after  Bovey  had  a  son,  who,  after  the  death  of  his 

(a)  See  2  Swanst.  144,  and  note  («) 


most  inconvenient  for  the  general  interests  of  mankind,  that  it  is  better  for  the  trustees 
never  to  destroy  the  remainders,  even  if  the  tenant  in  tail  concurs,  without  the  direction 
of  the  Court.  The  next  consideration  is,  in  what  cases  the  Court  will  direct  them  to 
join.  And,  if  I  am  governed  by  what  my  predecessors  have  done,  and  refused  to  do,  I 
cannot  collect,  in  what  cases  trustees  would  or  would  not  be  directed  to  join  ;  as  it 
requires  more  abilities  than  I  possess,  to  reconcile  the  different  cases  with  reference 
to  that  question.  They  all,  however,  agree,  that  these  trustees  arc  honorary  trustees  ; 
that  they  cannot  be  compelled  to  join ;  and  all  the  Judges  protect  themselves  from 
saying,  that  if  they  had  joined,  they  should  be  punished;  always  assuming  that  the 
tenant  in  tail  must  be  twenty-one.'  "  2  Story,  Eq.  Jur.  §  997  ;  Biscoe  v.  Perkins,  1  V. 
&  B.  491,  492. 

1  His  judgment  is  a  very  learned  dissertation  upon  the  subject,  and  was  therefore 
printed  at  large  by  Mr.  Cruise ;  but  it  is  deemed  not  to  be  of  sufficient  importance  to 
American  lawyers  to  warrant  its  insertion  entire,  in  this  edition. 


Title  XVI.     Remainder.     Ch.  VII.  s.  26.  809 

father,  suffered  a  recovery  ;  and  filed  his  bill  against  [the  repre- 
sentatives of]  Sir  J.  H.  Cotton,  praying  a  satisfaction  for  so  much 
as  he  had  received  of  the  money  which  arose  from  the  sale  of 
the  timber. 

Lord  Hardwicke  observed,  that  upon  this  case  the  general 
question  was,  whether  the  plaintiff  was  entitled  to  satisfaction 
for  so  much  as  Sir  J.  H.  Cotton  received  out  of  the  inheritance 
by  the  fall  and  sale  of  timber,  before  the  plaintiff  came  in  esse, 
and,  consequently,  before  he  had  any  estate  in  him  in  the  land, 
and  whilst  the  remainder,  which  vested  in  him  afterwards,  rested 
in  mere  contingency  or  possibility.  And  he  was  of  opinion  that 
he  was ;  and  accordingly  decreed  satisfaction  to  the  plaintiff  for 
what  the  late  Sir  J.  H.  Cotton  received  out  of  his  assets,  (a) 

(a)  Garth  v.  Sir  J.  Cotton,  Dickens,  183. 


68 


810 


CHAP.  VIII. 


OTHER   MATTERS    RELATING    TO    REMAINDERS. 


Sect.  1.  Where  Contingent  Remain- 
ders are  limited,  the  In- 
heritance remains  in  the 
Grantor. 
12.  How  far  this  Doctrine  is  ap- 
plicable to  Common-Late 
Conveyances. 


Sect.  14.   Contingent  Remainders  are 
transmissible. 
18.  Exception  to  this  Rule. 
20.  A  Contingent  Remainder  may 

pass  bij  Estoppel. 

22.  May  be  assigned  in  Equity. 

23.  And  devised  by  Will. 


Section  1.  Where  a  remainder  of  inheritance  is  limited  in  con- 
tingency, by  ivay  of  use,  the  inheritance,  in  the  mean  time,  if  not 
otherwise  disposed  of,  remains  in  the  settlor  or  grantor,  until  the 
contingency  happens,  to  take  it  out  of  him. 

2.  Thus,  in  Sir  E.  Clere's  case,  it  was  resolved  by  Popham, 
Chief  Justice,  and  Baron  Clarke,  upon  conference  had  with  the 
other  Justices,  that — "  If  a  man  seised  of  lands  in  fee  makes  a 
feoffment  to  the  use  of  such  person  and  persons,  and  of  such 
estate  and  estates  as  he  shall  appoint  by  his  will,  that  by  opera- 
tion of  law,  the  use  doth  vest  in  the  feoffor,  and  he  is  seised 
of  a  qualified  fee  ;  that  is  to  say,  till  declaration  and  limitation 
be  made  according  to  his  power."  And  that  "  when  a  man 
makes  a  feoffment  to  the  use  of  his  last  will,  he  has  the  use  in 
the  mean  time."  (a) 

3.  A  feoffment  was  made  to  the  use  of  the  feoffor  for  his  life, 
afterwards  to  the  use  of  such  tenants  as  he  should  demise  any 
part  of  the  premises  to,  for  life  or  years,  &c. ;  afterwards  to  the 
use  of  the  performance  of  his  will,  and  to  the  use  of  such  person 
and  persons  to  whom  he  should  devise  any  estate  in  the  premises  ; 
and  after  performance  of  his  will,  to  the  use  of  several  persons 
successively  in  tail ;  and  ultimately  to  the  use  of  himself  and  his 
heirs  forever. 

(a)  6  Eep.  18  a. 


Title  XVI.     Remainder.     Ch.  VIII.  s.  3—7.  811 

It  was  held  that  nothing  vested  till  the  death  of  the 
feoffor,  *  because  he  had  power  by  his  will  to  devise  to     *  327 
any  person  even  in  fee  simple  ;  from  which  it  followed 
that,  in  the  mean  time,  the  use  of  the  fee  vested  in  the  feoffor,  as 
it  was  adjudged  in  Clere's  case,  (a) 

4.  In  the  case  of  Davis  v.  Speed,  (b)  Lord  Holt  put  this  case, — 
"  If  a  feoffment  in  fee  is  made  to  the  use  of  A  and  the  heirs  of 
his  body  begotten,  the  remainder  in  fee  to  the  right  heirs  of  T. 
S.,  who  is  then  living,  in  such  case,  the  fee  simple  is  not  in  abey- 
ance, nor  in  the  feoffee  ;  but  the  use  of  the  fee  shall  result  to  the 
feoffor,  and  remain  in  him  until  the  contingency,  viz.,  the  death 
of  T.  S.  shall  happen." 

5.  It  is  the  same  where  a  contingent  remainder  is  created  by 
a  devise ;  as  the  inheritance  will  descend  to  the  heir  of  the 
devisor. 

6.  Thus,  in  the  case  of  Plunkett  v.  Holmes,  (c)  it  was  said  by 
Wyndham  and  Twisden,  and  agreed  by  the  other  Judges,  that 
the  fee  descended  to  T.  as  heir,  till  the  contingency  happened, 
though  not  so  as  to  confound  his  estate  for  life,  and  was  not  in 
abeyance.  That  in  relation  to  L.,  T.  took  only  an  estate  for  life ; 
but,  in  the  mean  time,  by  operation  of  law,  he  had  the  fee  in  such 
sort,  as  that  there  should  be  an  hiatus,  to  let  in  the  contingency 
when  it  happened. 

7.  Sampson  Shelton  devised  to  his  wife  for  life ;  and  if  she 
had  a  son,  and  caused  it  to  be  called  by  his  christian  name  and 
surname,  then  he  gave  the  inheritance  of  his  lands  to  him ;  and 
if  he  died  under  twenty-one,  then  to  his  own  heirs.  After  the 
death  of  the  devisor,  (without  issue,)  his  widow  married  (John 
Broughton,)  and  procured  a  conveyance  of  the  inheritance  from 
the  heir  at  law  to  her  husband  and  herself,  and  levied  a  fine  to 
them.  (After  this,  she  had  a  son  by  Broughton,  and  called  him 
Sampson  Shelton  Broughton.) 

Saunders  urged,  that  the  contingent  remainder  to  the  son  was 
not  destroyed ;  for  that  at  the  time  of  the  fine,  the  heir  of  the 
testator  had  no  reversion  or  estate  in  him ;  because  an  estate  for 
life  was  devised  to  the  wife,  and  the  remainder  in  fee  was  de- 
vised to  her  son  upon  a  contingency ;  so  that,  until  it  could  be 
known  whether  such  contingency  would  happen  or  not,  the  re- 

(a)  Leonard  Lovie's  case,  10  Rep.  78.  {b)  Carth.  262. 

(c)  Ante,  c.  6,  §  23. 


812  Title  XVI.     Remainder.     Ch.  VIII.  s.  7—11. 

version  must  be  in  abeyance,  not  in  the  heir  ;  and  then  his  con- 
veyance gave  no  estate  to  the  husband  and  wife,  but  they  were . 
only  tenants  for  the  life  of  the  wife,  as  before. 

Lord  Hale  interrupted  him  ;  and  said  it  was  clear  the  rever- 
sion was  in  the  heir  of  the  testator  by  descent,  not  in 
328  *     abeyance.     *  Accordingly,  it  was  adjudged  that  the  con- 
tingent remainder  was  destroyed,  (a) 
8.  In   the   case   of   Carter   v.  Barnardiston,  which    has   been 
already  stated  under  another  name,  a  question  arose  whether  the 
fee  was  in  abeyance,  or  descended  to  the  testator's  heir  at  law. 
Sir  J.  Jekyll  considered  the  fee  as  in  abeyance.     But  upon  an 

appeal  to  Lord  Parker,  this  decree  was  reversed,  (b) 
330  *         *  9.  Notwithstanding   the    authority  of  the   preceding 
cases,  the  doctrine  of  the  fee  simple  being  in  abeyance, 
was  held  by  Lord  Talbot  in  the  following  case. 

10.  A  devised  lands  to  B  and  C,  and  the  survivor  of  them, 
and  the  heirs  of  such  survivor,  in  trust  to  sell ;  the  estate  was 
decreed  to  be  sold ;  and  it  being  referred  to  the  Master  to  see 
whether  the  parties  could  make  a  good  title,  he  reported  that 
they  could  not  make  a  good  title,  there  being  no  fee  simple  in 
the  trustees,  for  that  the  remainder  in  fee  could  only  be  vested 
in  the  survivor,  and  it  was  uncertain  which  of  the  two  trustees 
would  be  the  survivor.  Exceptions  being  taken  to  the  Master's 
report,  Lord  Talbot  held  that  the  trustees  joining  in  a  fine  of  the 
premises,  would  pass  a  good  title  to  the  purchaser  by  estoppel ; 
that  here  the  fee  was  in  abeyance.1  And  it  being  said  by  the 
counsel  that  the  heir  of  the  devisor  would  join  in  the  conveyance 
to  the  purchaser,  he  replied  that  the  heir's  joining  would  supply 
the  want  of  proving  the  will,  but  that  in  every  other  respect  it 
would  be  void,  (c) 

11.  Mr.  Fearne  has  observed  that  the  opinion  in  this  case  does 
not  appear  to  have  been  the  subject  of  sufficient  consideration 
to  be  relied  on  as  an  authority  against  the  doctrine  relative  to 
the  descent   of    the   inheritance   to   the   testator's  heir ;    which 

(«)  Purefoy  v.  Rogers,  2  Saund.  3S0. 

(b)  Loddington  ».  Kyrne,  ante,  c.  1,  §  55,  59,  62.  Carter  v.  Barnardiston,  1  P.  Wms.  511. 
2  Bro.  P.  C.  1.  (c)  Vick  v.  Edwards,  3  P.  Wms.  372. 


1  The  position,  that  the  fee  was  in  abeyance,  is  questioned  by  Mr.  Butler,  in  his  note 
78,  to  1  Inst.  191,  a. 


Title  XVI.     Remainder.     Ch.  VIIL'  s.  11—12.  813 

appears  to  have  been  so  directly  and  fully  established  by  the 
several  cases  above  stated,  that  to  dispute  the  descent  of  the 
inheritance  to  the  heir  at  law  of  the  testator,  in  the  case  of  a 
contingent  remainder  created  by  will,  would  be  sacrificing  the 
authority  of  a  series  of  cases  wherein  that  point  had  been 
solemnly  decided,  and  repeatedly  recognized,  after  the'maturest 
discussion,  to  the  occasional  opinion  of  Lord  Talbot,  in  Vick  v. 
Edwards,  where  that  point  was  not  debated,  nor  the  direct  subject 
of  decision,  (a) 

12.  The  preceding  doctrine  of  the  continuance  of  the  inheri- 
tance in  the  grantor  and  his  heirs,  or  in  the  heirs  of  the  devisor, 
axe  confined  to  cases  of  conveyances  by  way  of  use,  and  dispositions 
by  will ;  for  different  opinions  have  prevailed  in  respect  to  its  ad- 
mission in  conveyances  at  common  law.1 

*  Some  have  held  that  in  case  of  a  lease  for  life,  re-  *  331 
mainder  to  the  right  heirs  of  J.  S.,  then  living,  no  estate 
at  all  remains  in  the  grantor ;  and  that  he  cannot  enter  for  the 
forfeiture  in  case  of  a  feoffment  by  the  tenant  for  life ;  whilst 
others,  though  disinclined  to  admit  that  any  estate  remains  in 
the  grantor  in  such  case,  still  allow  him  a  right  of  entry  for  the 
forfeiture,  upon  a  feoffment  by  the  tenant  for  life ;  no  less  than 
on  the  determination  of  his  estate  by  death,  before  the  contin- 
gency happens.  These  opinions  are  founded  on  an  assumption 
that  the  remainder  must  pass  out  of  the  donor  at  the  time  of  the 
livery,  consequently  that  no  estate  shall  remain  in  him  after  such 
livery  ;  therefore,  in  the  case  of  a  lease  to  one  for  life,  remainder 
to  the  right  heirs  of  J.  S.,  the  remainder  is  in  abeyance,  or  in 
nubibus,  or  in  gremio  legis ;  though,  says  Mr.  Fearne,  by  way 
of  some  sort  of  compromise  between  common  sense,  and  the  sup- 
position of  an  estate  passing  out  of  a  man,  when  there  is  no 
person  in  rerum  naturd,  no  object  besides  hard  and  hardly  intelligi- 
ble words  for  the  reception  of  it,  at  the  time  of  the  livery,  they  are 

(a)  Fearne,  Cont.  Rem.  525.     Ex  parte  Harrison,  3  Anstr.  836. 

1  The  better  opinion  now  is,  that  this  doctrine  is  applicable  to  conveyances  at  com- 
mon law,  in  all  cases  ;  and  that  in  the  case  of  a  lease  for  life,  remainder  to  the  right 
heirs  of  J.  S.,  who  is  then  living,  the  inheritance  remains  in  the  grantor,  until  J.  S.  dies 
during  the  estate  for  life,  and  then  vests  in  the  persons  who  are  his  heirs.  See  Shapleigh 
v.  Pilsbury,  1  Greenl.  271,  where  the  doctrine  of  abeyance  is  very  fully  discussed  by 
Mellon,  C.  J.  4  Kent,  Comm.  258;  1  Inst.  191,  a,  note  78,  by  Mr.  Butler;  Rice 
v.  Osgood,  9  Mass.  38. 


814  Title  XVI.'   Remainder.     Ch.  VIII.  5.  12—15. 

compelled  to  admit  such  a  species  of  interest  to  remain  in  the 
grantor,  as  upon  the  determination  of  the  estate,  ^before  the  con- 
tingent remainder  can  take  place,  entitles  the  grantor  or  his  heirs 
to  enter,  and  reassume  the  estate,  (a) 

13.  In  2  Roll's  Abridgment,  418,  it  is  laid  down,  that  if  a 
lease  for  life  or  in  tail  be,  the  remainder  to  the  right  heirs  of  J.  S., 
and  tenant  for  life  dies  without  issue,  living  J.  S.,  the  remainder 
is  void,  because  J.  S.  cannot  have  an  heir  during  his  life ;  and 
inasmuch  as  this  does  not  take  effect  during  the  particular  estate, 
it  shall  never  take  effect,  though  he  dies  after  and  has  an  heir ; 
in  such  case,  inasmuch  as  the  remainder  cannot  take  effect,  the 
donor  shall  have  the  land  again.  What  is  this  in  effect,  says 
Mr.  Fearne,  but  admitting  no  more  actually  passed  out  of  the 
grantor  than  the  estate  to  the  tenant  for  life,  or  in  tail ;  until  and 
unless  J.  S.  died  before  the  estate  of  such  tenant  determined  ?  (b) 

14.  A  contingent  remainder  of  inheritance  is  transmissible  to 
the  heirs  of  the  person  to  whom  it  is  limited,  if  such  person 
chance  to  die  before  the  contingency  happens. 

15.  Richard  Lower  made  a  feoffment  to  the  use  of  himself  for 
life ;  after  the  death  of  himself  and  P.,  his  wife,  to  the  use  of 

Thomas,  his  eldest  son,  for  life ;  after  the  death  of  Rich- 
332*  ard,  and  *P.,  his  wife,  and  Thomas,  to  the  use  of  Jane, 
the  wife  of  Thomas,  and  of  such  issue  male  or  female,  as 
the  said  Thomas  should  beget  on  her;  if  Thomas  should  have 
no  issue  by  her,  then  to  the  use  of  Jane  for  life ;  and  after  the 
death  of  Richard  and  P.,  his  wife,  and  Jane,  all  the  lands  to  the 
use  of  Thomas  and  the  heirs  male  of  his  body;  remainder  to 
the  right  heirs  of  Thomas.  Thomas  had  issue  a  daughter,  then 
made  a  lease  of  all  the  lands  by  deed  indented,  for  five  hundred 
years ;  afterwards  granted  the  lands  by  fine  to  the  lessee  for  five 
hundred  years,  and  died  in  the  lifetime  of  Richard. 

It  was  held  that  the  estate  limited  to  Thomas  was  a  contin- 
gent remainder,  for  the  particular  estate  was  only  for  the  life  of 
Richard,  whereas  Thomas's  estate  was  not  to  commence  till  after 
the  death  of  Richard  and  P.,  his  wife ;  and  though  Thomas  levied 
the  fine  for  five  hundred  years,  and  died  before  the  contingency 
happened,  yet  his  heir  afterwards,  when  the  contingency  did  hap- 
pen, was  bound  by  the  fine,  and  the  lease  for  five  hundred  years 

(a)  1  Inst.  342,  b.     1  P.  Wms.  515. 

(b)  Vin.  Ab.  tit.  Rem.  (I.)     Fearne,  Cont.  Rem.  528. 


Title  XVI.     Remainder.     Ch.  VIII.  s.  15—20.         815 

took  place ;  for  it  was  agreed  that  the  contingent  remainder  de- 
scended to  his  heir,  (a) 

16.  The  same  law  hoids  with  respect  to  contingent  uses,  which 
will  also  descend,  where  the  person  to  whom  they  are  limited, 
dies  before  the  contingency. 

17.  Thus,  it  is  laid  down  in  Shelley's  case,  that  if  a  man  seised 
of  the  manor  of  $.,  covenants  with  another  that  when  J.  S.  shall 
enfeoff  him  of  the  manor  of  D.,  then  he  will  stand  seised  of  the 
manor  of  S.  to  the  use  of  the  covenantee  and  his  heirs ;  the  cov- 
enantee dies,  his  heir  within  age.  J.  S.  enfeoffs  the  covenantor. 
Held,  that  the  heir  should  be  adjudged  in,  in  course  and  nature 
of  a  descent ;  and  yet  it  was  neither  a  right,  title,  use,  nor  action 
that  descended,  but  only  a  possibility  of  an  use,  which  could 
neither  be  released  nor  discharged  ;  but  it  might,  if  the  condition 
had  been  performed,  have  vested  in  the  ancestor ;  and  then  the 
heir  had  claimed  it  by  descent,  (b) 

18.  Mr.  Fearne  has  observed,  that  some  cases  may  arise  where 
the  existence  of  the  devisee  of  a  contingent  remainder,  at  some 
particular  time,  may,  by  implication,  enter  and  make  part  of  the 
contingency  itself,  upon  which  such  interest  is  intended  to  take 
effect ;  in  which  case  it  cannot  descend,  (c) 

19.  Thus,  in  a  modern  case,  where  a  husband  and  wife  settled 
certain  lands,  which  were  the  inheritance  of  the  wife,  to  the 

use  *  of  the  wife  for  life,  remainder  to  the  husband  for  life,  *333 
if  he  and  his  wife  should  have  any  issue  that  should  so  long 
live,  remainder  to  all  such  children  in  fee,  as  tenants  in  common ; 
if  the  wife  should  die  without  issue,  or  all  such  issue  should  die 
before  twenty-one,  then,  as  to  one  moiety,  to  the  husband  in  fee. 
The  husband  died  in  the  lifetime  of  his  wife. 

The  Court  was  clearly  of  opinion  that,  upon  all  the  circum- 
stances of  the  case,  the  contingency  upon  which  it  was  intended 
that  the  estate  of  the  husband  should  arise,  was  that  of  his  sur- 
viving his  wife  ;  and  that  as  he  died  first,  the  contingency  never 
arose. (d) 

20.  A  contingent  remainder  might,  by  the  common  law,  be 

(a)  Weale  9.  Lower,  Pollex.  54. 

{b)  Wood's  case,  1  Rep.  99,  a.     Wilson  v.  Bayley,  3  Bro.  Pari.  Ca.  195. 

(c)  Fearne,  Cont.  Rem.  364. 

(d)  Moorhouse  v.  Wainhouse,  1  Black.  Rep.  638. 


816         Title  XVI.     Remainder.     Ch.    VIII.   s.  20—23. 

passed  by  fine,  operating  by  way  of  estoppel,  so  as  to  bind  the 
interest  which  shall  afterwards  accrue  by  the  contingency,  (a) 

21.  Thus,  in  the  case  of  Weale  v.  Lo&er,  it  was  determined, 
that  though  the  fine  operated  at  first  by  conclusion,  and  passed 
no  interest,  yet  the  estoppel  should  bind  the  heir;  that  upon  the 
happening  of  the  contingency,  the  estate  by  estoppel  became  an 
estate  in  interest,  of  the  same  effect  as  if  the  contingency  had 
happened  before  the  fine  was  levied;  and  that  if  the  fine  had 
been  in  fee,  it  would  have  barred  the  heir,  and  operated  to  the 
benefit  of  the  possession,  as  the  fine  of  a  disseisee  to  a  stranger ; 
but  being  only  for  years,  the  fee  was  vested  and  the  term  good, 
being  drawn  out  of  the  fee.  (b) 

22.  Although  a  contingent  remainder  cannot  be  passed  or 
transferred  by  a  conveyance  at  law,  before  the  contingency  hap- 
pens, otherwise  than  by  estoppel,  by  deed  or  fine,  or  by  a  com- 
mon recovery,  wherein  the  person  entitled  to  the  contingent 
estate  comes  in  as  vouchee  ;  yet  it  seems  that  contingent  estates 
are  assignable  in  equity,  (c) 

23.  Contingent  remainders  were  formerly  held  not  to  be  de- 
visable by  the  persons  entitled  thereto,  whilst  they  remained  in 
contingency  ;  but  it  has  been  determined  in  some  modern  cases, 
that  where  contingent  remainders  are  descendible  to  the  heirs 
of  the  persons  entitled  to  them,  they  may  be  devised  by  will, 
like  any  other  estates,  of  which  an  account  will  be  given  here- 
after, (d) 

(a)  Fearne,  Cont.  Eem.  365.     Altered  by  Stat.  3  &  4  Will.  4,  c.  74,  §  2. 

(b)  Ante,  $  15.     Davies  v.  Bird,  1  M.  &  Yo.  88.     Doe  v.  Oliver,  10  Bar.  &  Cress.  181.    lb. 
191.    Infra,  vol.  5.     Tit.  35,  c.  11,  §  9.     Vick  v.  Edwards,  ante,  §  10. 

(c)  Fearne,  Cont.  Rem.  366,  550.    Tit.  36.     Tit.  38,  c.  20. 

(d)  Tit.  38,  c.  3.    Roe  d.  Perry  r.  Jones,  1  Hen.  Bl.  30.    17  Ves.  182.     (3  T.  R.  88.) 


817 


TITLE  XVII. 


REVERSION. 
BOOKS   OF   REFERENCE   UNDER   THIS   TITLE. 

Blackstone's  Commentaries.    Book  II.  ch.  11. 

Kent's  Commentaries.     Vol.  IV.  Lect.  63. 

Coke  upon  Littleton,  22, b. 

Flintoff  on  Real  Property.      Vol.  II.  Book  I.  ch.  4,  §  3. 

Preston  on  Abstracts  of  Title.     Vol.  II.  p.  80—85. 


Sect.  1.  Description  of. 

11.  Arises  from  the   Construction 

of  Law. 
13.  Is  a  vested  Interest. 
1G.  But  may  be  divested. 
18.  Incidents  to  Reversions. 
21.  After  Estates  for  Years   are 

present  Assets. 
24.  After    Estates   for  Life   are 

quasi  Assets. 


Sect.  27.  After  Estates  Tail  are  Assets 
when  they  come  into  Pos- 
session. 

28.  And  liable  to  the  Bond  Debts 
of  the  Settlor. 

32.  And  also  to  Leases. 

35.  All  particular  Estates  merge 
in  the  Reversion. 


Section  1.  The  second  kind  of  estate  in  expectancy  is  called 
a  reversion ;  and  is  defined  by  Lord  Coke  to  be  the  returning'  of 
the  land  to  the  grantor  or  his  heirs,  after  the  grant  is  determined. 
Reversio  terrce  est  tanquam  terra  revertens  in  possessione  dona- 
tori,  sive  hceredibus  suis,  post  donum  finitum.  In  another  place, 
Lord  Coke  describes  a  reversion  to  be,  where  the  residue  of 
the  estate  always  continues  in  him  who  made  the  particular 
estate,  (a) 

2.  The  idea  of  a  reversion  is  founded  on  the  principle,  that 
where  a  person  has  not  parted  with  his  whole  estate  and  interest 
in  a  piece  of  land,  all  that  which  he  has  not  given  away  remains 
in  him  ;  and  the  possession  of  it  reverts  or  returns  to  him,  upon 
the  determination  of  the  preceding  estate.     Hence  Lord  Coke 

(a)  1  Inst.  22,  b.  142,  b.     Plowd.  151. 

vol.  i.  69 


818  Title  XVII.     Reversion,     s.  2—7. 

says, — "  And  the  law  termeth  a  reversion  to  be  expectant  on  the 
particular  estate,  because  the  donor  or  lessor,  or  their  heirs,  after 
every  determination  of  any  particular  estate,  doth  expect  or  look 
for,  to  enjoy  the  lands  or  tenements  again."  (a) 

3.  If,  therefore,  a  person  who  is  seised  in  fee  conveys  his  estate 
to  A  for  life,  remainder  to  B  for  life,  remainder  to  twenty  other 

persons  for  life,  he  still  retains  the  fee  simple  of  the  lands, 
335  *     *  because  he  has  not  parted  with  it.     But   as  that  fee 

simple  can  only  return  or  fall  into  possession  upon  the 
determination  of  the  preceding  estates,  it  is  only  an  estate  in  re- 
version. 

4.  Before  the  Statute  De  Donis  Conditionalibus,  no  reversion 
remained  in  the  donor,  after  he  had  created  a  conditional  fee  ; 
because  the  grantee  of  such  an  estate  was  considered  as  having 
the  entire  property  of  it ;  and  the  donor  had  only  a  possibility  of 
reverter,  not  an  actual  estate  in  reversion.  But  as  soon  as  the 
Statute  De  Donis  was  made,  the  Judges  held  that  the  estate 
given  to  a  man  and  the  heirs  of  his  body,  was  only  a  particular 
estate,  therefore  there  remained  an  estate  in  reversion  in  the 
donor,  (b) 

5.  Lord  Coke  has  observed  that  this  point  was  once  doubted, 
but  without  reason,  for  at  the  same  session  of  parliament  in 
which  the  Statute  De  Donis  was  made,  ch.  3,  it  is  expressly  said, 
velper  donum  in  quo  reservatur  reversio.  So  that,  by  the  judg- 
ment of  the  same  parliament,  a  reversion  was  settled  in  the 
donor,  (c) 

6.  Where  a  gift  is  made  of  a  qualified  or  base  fee,  no  reversion 
remains  in  the  donor.  For  Lord  Coke  says  :  —  "If  lands  be 
given  to  A  and  his  heirs,  so  long  as  B  hath  heirs  of  his  body, 
remainder  over  in  fee,  the  remainder  is  void."  But  Lord  C.  J. 
Vaughan  observing  upon  this  passage,  doubts  whether  it  be 
law  ;  and  says  :  —  "  When  such  a  base  fee  determines  for  want 
of  issue  of  the  body  of  B,  the  land  returns  to  the  grantor  and  his 
heirs,  as  a  kind  of  reversion  ;  and  if  there  can  be  a  reversion  of 
such  an  estate,.  I  know  not  why  a  remainder  may  not  be  granted 
of  it.  (d) 

7.  Where  a  person  creates  an  estate  for  years  by  lease,  he  has 
a  reversion  as  soon  as  the  lessee  enters,  and  not  before.     But 

.  (a)  1  Inst.  183,  b.  (b)  Tit.  2,  c.  1.    Plowd.  248.     Lit.  §  18,  IP. 

(c)  1  Inst.  22,  b.  (d)  1  Inst.  18,  a.    Vaugh.  R.  269. 


Title  XVII.     Reversion,     s.  7—12.  819 

when  an  estate  for  years  is  created  by  a  conveyance  deriving  its 
effect  from  the  Statute  of  Uses,  the  person  to  whom  such  estate 
is  limited  acquires  the  actual  possession  without  entry ;  conse- 
quently the  person  who  creates  the  estate  for  years  has  a  rever- 
sion immediately  upon  the  execution  of  the  conveyance,  (a) 

S.  Where  a  person  having  only  a  particular  estate  in  lands, 
grants  a  smaller  estate  than  his  own,  he  has  a  reversion  left  in 
himself.  Thus,  if  tenant  in  tail  grants  an  estate  for  the  life  of 
another,  he  has  a  reversion  in  him ;  because  he  has  not  parted 
with  his  whole  interest. 

*  9.  In  the  same  manner,  where  a  person  who  has  an     *  336 
estate  for  ninety -nine  years,  grants  it  for  ninety-eight  years, 
or  for  any  other  shorter  term,  he  has  a  reversion  left  in  him ;  if 
he  even  grants  it  for  ninety-nine  years,  less  one  day,  he  has  a 
reversion. 

10.  Lord  Coke  says,  if  a  man  extends  lands  by  force  of  a 
statute  merchant,  statute  staple,  recognizance,  or  elegit,  he  leaves 
a  reversion  in  the  cognizor.  (b) 

11.  A  reversion  cannot  be  created  by  deed  or  other  assurance, 
but  arises  from  construction  of  law.  Thus  Lord  Coke  says,  if  a 
man  makes  a  gift  in  tail,  or  a  lease  for  life,  the  remainder  to  his 
own  right  heirs,  the  remainder  is  void,  and  he  has  the  reversion 
in  him.  So  if  a  man  makes  a  feoffment  in  fee,  to  the  use  of 
himself  for  life,  and  after  to  the  use  of  another  in  tail,  and  after 
to  the  use  of  his  own  right  heirs,  the  reversion  is  in  him  by  con- 
struction of  law,  and  not  by  the  limitation ;  f  because  the  use 
of  the  fee  continued  ever  in  him  ;  and  the  Statute  of  Uses  exe- 
cutes the  possession  to  the  use,  in  the  same  plight  as  the  use  was 
limited,  (c) 

12.  Lord  Coke  also  says,  if  a  man  makes  a  feoffment  in  fee, 
to  the  use  of  himself  in  tail,  and  after  to  the  use  of  the  feoffee  in 
fee,  the  feoffee  has  no  reversion,  but  in  the  nature  of  a  remain- 
der ;  albeit  the  feoffor  have  the  estate  tail  executed  in  him  by  the 

(«)  1  Inst.  46,  b.     Tit.  8,  c.  1,  §  12.     Tit.  11,  c.  4,  §  11.  (b)  1  Inst.  22,  b. 

(c)  1  Inst.  22,  b.     Tit.  11,  c.  4. 

[t  Although  it  is  still  true  that  a  reversion  cannot  he  created  by  deed,  but  arises  by 
construction  of  law.  yet  such  limitations  as  those  above  stated  by  Lord  Coke  to  the 
right  heirs  of  the  settlor,  are  now,  by  the  recent  statute  3  &  4  Will.  4,  c.  106,  $  3,  made 
valid,  and  have  the  effect  of  conferring  the  remainder  in  fee  upon  the  settlor  by  pur- 
chase.    Vide  supra,  tit.  11,  ch.  4,  §  34,  note.] 


820  Title  XVII.     Reversion,    s.  12—13. 

Statute  of   Uses,   and  the  feoffee  is   in   by  the  common  law  ; 
which,  he  says,  is  worthy  of  observation,  (a) 

13.  Although  a  person  can  only  be  said  to  be  entitled  to,  not 
seised  of,  an  estate  in  reversion ;  yet  estates  in  reversion  are 
properly  classed  under  the  general  denomination  of  vested  inter- 
ests ;  because  a  person  entitled  to  an  estate  in  reversion  has  an 
immediate  fixed  right  of  future  enjoyment;  that  is,  an  estate 
vested  in  prcesenti,  though  it  is  only  to  take  effect  in  possession 
and  profit  in  futuro ;  and  which  may  be  aliened  and  charged 
much  in  the  same  manner  as  an  estate  in  possession.1 

(a)  1  Inst.  22,  b. 


1  In  Massachusetts,  a  mesne  reversioner,  by  conveyance  from  the  original  rever- 
sioner, becomes  a  new  stock  of  descent ;  and  the  reversion,  though  expectant  on  the 
determination  of  a  freehold,  vests,  by  descent,  in  the  heirs  of  the  mesne  reversioner, 
upon  his  decease  during  the  existence  of  the  tenancy  for  life.  Miller  v.  Miller,  10  Met. 
393.  That  this  is  also  the  true  exposition  of  the  common  law  of  this  country,  seems 
evident  from  the  strong  reasoning  of  Shaw,  C.  J.,  in  the  same  case,  p.  399,  400 ;  and 
from  that  of  Mr.  Justice  Story,  in  Cook  v.  Hammond,  4  Mason,  467,  484,  4S5.  "  The 
rale,"  as  the  latter  remarks,  "  as  to  reversions  and  remainders,  expectant  upon  estates 
in  freehold,  is,  that  unless  something  is  done  to  intercept  the  descent,  they  pass,  when 
the  particular  estate  falls  in,  to  the  person  who  can  then  make  himself  heir  of  the  orig- 
inal donor,  who  was  seised  in  fee  and  created  the  particular  estate,  or  if  it  be  an 
estate  by  purchase,  the  heir  of  him  who  was  the  first  purchaser  of  such  reversion  or 
remainder.  It  is  no  matter  in  how  many  persons  the  reversion  or  remainder  may,  in 
the  intermediate  period,  have  vested  by  descent ;  they  do  not,  of  course,  form  a  new 
stock  of  inheritance.  The  law  looks  only  to  the  heir  of  the  donor  or  first  purchaser. 
But  while  the  estate  is  thus  in  expectancy,  the  mesne  heir,  in  whom  the  reversion  or 
remainder  vests,  may  do  acts,  which  the  law  deems  equivalent  to  an  actual  seisin,  and 
which  will  change  the  course  of  the  descent,  and  make  a  new  stock.  Thus,  he  may  by 
a  grant,  or  devise  of  it,  or  charge  upon  it,  appropriate  it  to  himself,  and  change  the 
course  of  the  descent.  In  like  manner,  it  may  be  taken  in  execution  for  the  debt  of 
such  mesne  remainder-man  or  reversioner  during  his  life,  and  this,  in  the  same  man- 
ner, intercepts  the  descent.  But  if  no  such  acts  be  done,  and  the  reversion  or  remain- 
der continues  in  a  course  of  devolution  by  descent,  the  heir  of  the  first  donor  or  pur- 
chaser will  be  entitled  to  the  whole  as  his  inheritance,  although  he  may  be  a  stranger 
to  all  the  mesne  reversioners  and  remainder-men  through  whom  it  has  devolved. 

;'Now  the  operation  of  this  doctrine  in  respect  to  estates  in  fee  in  possession,  which 
are  subject  to  dower  and  tenancy  by  the  curtesy,  is  very  important.  In  the  former 
case,  though  the  heir  at  law  may  obtain  an  actual  seisin  by  entry  into  the  whole  estate, 
yet,  by  the  assignment  of  dower,  that  seisin,  as  to  the  third  part  assigned  as  dower, 
is  defeated  ab  initio ;  for  the  dowress  is  in  of  the  seisin  of  her  husband,  and  her  estate 
is  but  a  continuance  of  this  seisin.  The  same  principle  is  true  of  tenant  by  the  curtesy. 
It  is  even  stronger;  for  the  law  vests  the  estate  by  curtesy  in  the  husband  without  any 
assignment,  and  even  without  any  entry,  if  the  wife  were  already  in  possession,  his 
estate  being  initiate  immediately  on  issue  had,  and  consummate  by  the  deatli  of  his 
wife.     So  that  there  is  no  chasm  between  the  death  of  the  wife  and  his  possession,  as 


Title  XVII.     Reversion,    s.  14—15.  821 

14.  The  law  is  as  careful  of  the  rights  of  the  reversioner,  as  of 
those  of  the   tenant  in   possession ;    and  will   therefore 
allow  an  *  action  to  be  brought  by  the  reversioner,  as  well    *  337 
as  by  the  tenant  in  possession,  for  an  injury  done  to  the 
inheritance.1 

15.  A  person  in  reversion  brought  an  action  for  erecting  a 
wall,  whereby  his  light  was  obstructed ;  and  obtained  a  verdict, 
with  general  damages.  On  a  motion  in  arrest  of  judgment,  it 
was  objected,  that  this  action  would  not  lie  by  a  reversioner, 
being  only  an  injury  to  the  person  in  possession. 

The  Court  was  of  opinion  that  an  action  might  be  brought  by 
one,  in  respect  of  his  possession,  and  by  the  other  in  respect  of 
his  inheritance,  for  the  injury  done  to  the  value  of  it ;  for  if  the 
reversioner  wanted  to  sell  the  reversion,  this  obstruction  would 
certainly  lessen  the  value  of  it.  (a)  2 

(«)  Jesser  v.  Gifford,  4  Burr.  2141.    (Ripka  v.  Sergeaut,  7  Watts  &  Serg.  9.    Little  v. 
Palister,  3  Greenl.  6.) 


there  is  in  ease  of  the  death  of  the  husband  and  the  assignment  of  dower  to  the  wife, 
in  which  there  can  be  a  mesne  seisin.  Nothing,  therefore,  but  a  reversion  passes  in 
such  case  to  the  heir.  But  it  is  a  misnomer  to  call  it  a  case  of  suspended  descent.  In 
such  case  of  curtesy,  the  reversion  descends  and  vests  absolutely  in  the  heir.  He  may 
sell  it,  incumber  it,  devise  it;  and  it  is  subject  to  execution  as  part  of  his  property  dur- 
ing his  life.  The  descent  to  the  heir  is  not  suspended,  but  the  actual  seisin  of  the  fee 
is  not  in  him,  since  by  law  the  actual  seisin  is  in  the  tenant  by  the  curtesy."  See 
4  Mason,  4S5,  486.  See,  also,  Marley  v.  Rodgers,  5  Ycrg.  217.  [Fowler  v.  Griffin, 
3  Sandf.  Sup.  Ct.  385.] 

1  Timber  trees,  cut  for  sale  by  the  tenant  for  life,  become  immediately  the  personal 
property  of  the  reversioner  ;  and  he  may  maintain  an  action  for  them.  Richardson  v. 
York,  2  Shepl.  216.  [Reversioners  entitled  to  land  only  upon  the  determination  of  a 
life-estate,  have  no  right  to  authorize  the  cutting,  during  the  life-estate,  of  trees  stand- 
ing upon  the  land.  Simpson  v.  Bowdcn,  33  Maine,  (3  Red.)  549.  A  house  was  built 
and  occupied  by  a  reversioner,  with  the  assent  of  the  tenant  for  life,  and  was  subse- 
quently conveyed  by  the  reversioner.  Held,  that  the  grautee  could  not  enter  and  oc- 
cupy the  house  against  the  tenant  for  life.     Cooper  v.  Adams,  6  Cush.  87.] 

The  statute  of  New  York  gives  the  reversioner  or  remainder-man  an  action  of  waste 
against  the  tenant,  or  trespass  against  a  stranger,  for  any  injury  to  the  inheritance, 
notwithstanding  any  intervening  estate  for  life  or  years ;  and  admits  him  to  defend  as 
a  party  to  suits  against  the  tenant.  And  his  right  to  restitution  is  not  barred  by  any 
judgment  against  the  tenant.  New  York  Rev.  Stat.  Vol.  II.  p.  34,  §  8  ;  Ibid.  p.  433, 
§  1,  2,  3,  3d  ed.;  Livingston  v.  Haywood,  11  Johns.  429.  The  first  of  these  provisions 
is  also  found  in  Indiana,  Rev.  Stat.  1843,  eh.  28.  §  225.  And  see  ante,  ch.  6,  §  3,  note. 
If  the  act  was  done  by  a  stranger,  by  authority  of  the  tenant,  tresj>ass  will  not  lie 
against  him.     Livingston  v.  Mott,  2  Wend.  605.        ., 

2  The  right  of  the  reversioner  is  not  affected  by  a  descent  cast,  nor  by  the  Statute 
of  Limitations,  if  a  particular  estate  existed  at  the  time  of  the  disseisin,  or  when  the 

69* 


822  Title  XVII.     Reversion,    s.  16—19. 

16.  An  estate  in  reversion  expectant  on  an  estate  for  life 
may  be  divested  by  the  feoffment  of  the  tenant  for  life  ;  by 
which  nothing  but  a  right  of  entry  will  remain  in  the  rever- 
sioner. («.)  f 

17.  But  where  the  particular  estate  was  only  for  years,  a  fine 
levied  by  the  termor  would  not  have  that  effect. 

18.  The  usual  incidents  to  an  estate  in  reversion  are  said  to  be 
fealty  and  rent ;  where  no  rent  is  reserved  out  of  the  particular 
estate,  fealty  results  of  course,  and  may  be  demanded  as  a  badge 
of  tenure. 

19.  Lord  Coke  says,  that  in  the  case  of  a  gift  in  tail,  lease  for 
life,  or  years,  fealty  is  an  incident  inseparably  annexed  to  the 
reversion  ;  so  that  the  donor  or  lessor  cannot  grant  the  reversion 

over,  and  save  to  himself  the  fealty,  or  such  like  service : 
338  *     but  the  *  rent  he  may  except,  because  the  rent,  though 

it  be  incident  to  the  reversion,  yet  is  not  inseparably 
incident,  (b)1 

(a)  Hard.  R.  401.     Gobdright  v.  Forrester,  tit.  35,  c.  12. 

(b)  1  Inst.  143,  a.     151,  b.     (Condit  v.  Neighbor,  1  Greerj,  83.) 

adverse  possession  began ;  for  the  right  of  entry  did  not  then  exist ;  and  the  laches 
of  the  tenant  for  life  shall  not  operate  to  his  injury.  Jackson  v.  Schoonmaker,  4  Johns. 
390  ;  Jackson  v.  Mancius,  2  Wend.  357.  [A  reversioner  is  not  bound  to  enter  imme- 
diately for  a  disseisin  of.  or  a  forfeiture  by,  the  tenant  for  life,  but  a  new  right  of  entry 
accrues  at  the  death  of  such  tenant,  and  the  Statute  of  Limitations  begins  to  run  against 
the  reversioner  from  that  time,  how  long  soever  the  tenant  may  have  been  disseised, 
Miller  v.  Ewing,  6  Cush.  34,  41 ;  Foster  v.  Marshall,  2  Foster,  (N.  H.j  491.] 

The  injury,  to  entitle  the  reversioner  to  an  action,  must  be  such  as  is  necessarily 
prejudicial  to  his  reversionary  right.  If  the  act  be  injurious  only  to  the  particular 
tenant,  he  alone  can  maintain  the  action.  Jackson  v.  Pesked,  1  M.  &  S.  234  ;  Little  v. 
Palister,  3  Greenl.  6  ;  Randall  v.  Cleveland,  6  Conn.  R.  328. 

t  [Previously  to  the  31st  day  of  December,  1833,  his  fine  would  have  the  same 
operation:  the  fine,  however,  is  now  abolished  by  the  recent  statute  3&  4  Will.  4, 
c.  74.  The  effect  of  a  feoffment,  and  of  a  fine  by  tenant  in  tail  in  possession,  to  work 
a  discontinuance  of  the  reversion,  has  been  noticed  under  a  former  title.  The  rever- 
sioner, as  before  stated,  was  thereby  deprived  of  his  right  of  entry,  and  put  to  his  real 
action.  But  real  actions  (except  writs  of  right  of  dower,  writ  of  dower  uncle  nihil  habet, 
quare  impedit,  an  ejectment  and  plaint  for  frecbench  or  dower)  are  taken  away  by  stat- 
ute 3  &  4  Will.  4,  c.  27,  §  36,  37,  after  the  first  day  of  June,  1835 ;  from  which  period, 
it  would  seem  that  there  will  not  virtually  be  any  difference  between  a  right  of  action 
and  a  right  of  entry,  for  the  recovery  of  real  estate — the  right  of  entry  being  in  effect 
the  right  to  bring  an  ejectment.]     Tit.  2,  c.  2,  §  7 — 12. 

i  A  grant  of  the  reversion,  whether  absolutely,  or  in  mortgage,  entitles  the  grantee 
to  the  rents  which  subsequently  accrue,  as  incident  to  the  reversion  ;  but  not  to  the  rents 
then  in  arrear.  Burden  v.  Thayer, "3  Met.  76  ;  Birch  v.  Wright,  1  T.  R.  378  ;  Demarest 
v.  Willard,  8  Cowen,  206;  Peck  v.  Northrop,  17  Conn.  217. 


Title  XVII.     Reversion,     s.  20—24.  823 

20.  It  has  been  stated  that  curtesy  and  dower  are  incident  to 
reversions  expectant  on  estates  for  years,  but  not  to  reversions 
expectant  on  estates  of  freehold,  (a)1 

21.  A  reversion  expectant  on  the  determination  of  a  term  for 
pears,  is  present  assets,  for  payment  of  debts.  For  the  heir  can- 
not plead  a  term  of  this  kind,  created  by  his  ancestor,  in  delay 
of  execution,  but  must  confess  assets.2 

22.  In  an  action  of  debt  against  the  heir,  upon  the  obligation 
of  his  ancestor,  the  defendant,  not  denying  the  action  or  obliga- 
tion, pleaded  that  his  ancestor  was  seised  in  fee,  and  that  he 
demised  the  same  for  500  years  to  A,  who  entered ;  and  that 
the  said  reversion  descended,  et  riens  ultra  ;  and  that,  at  the  time 
of  the  action  brought,  he  had  no  tenements  in  fee  simple  by 
descent,  except  the  said  reversion.  It  was  not  questioned,  but 
judgment  ought  to  be  given  for  the  plaintiff;  the  doubt  was, 
whether  general  or  special.  The  Court  was  of  opinion  that  a 
general  judgment  ought  to  be  given.  And  Lord  Holt  said,  it 
had  been  a  doubt,  whether  the  heir  could  plead  a  term  for  years 
in  delay  of  present  execution ;  and,  though  there  were  even 
some  precedents  to  that  purpose,  yet  he  was  of  opinion,  the  heir 
could  not  plead  a  term  in  delay,  but  ought  to  confess  assets :  for 
the  reversion  is  assets,  and  the  common  law  had  no  regard  to  a 
term  for  years.  And  there  is  no  mischief  in  this :  for  though,  in 
consequence,  a  levari  facias  may  go,  yet  the  lessee  may  main- 
tain himself  against  an  ejectment  by  virtue  of  his  lease,  (b) 

23.  In  a  subsequent  case  the  Court  of  Common  Pleas  acqui- 
esced in  the  doctrine  laid  down  by  Lord  Holt;  but  gave  judg- 
ment upon  another  point,  (c) 

24.  A  reversion  expectant  on  the  determination  of  an  estate 
for  life  is  quasi  assets,  and  ought  to  be  pleaded  specially  by  the 

(«)  Tit  5,  c.  2,  §  23.  Tit.  C,  c.  2,  §  8.  (Robison  v.  Codman,  1  Sumn.  121,  130.  4  Dane's 
Abr.  664.) 

(b)  Smith  v.  Angel,  1  Salic.  354.  2  Ld.  Raym.  783.  7  Mod.  40.  Osbaston  v.  Stanhope, 
2  Mod.  50.     2  Inst.  321.  (c)  Villers  v.  Handley,  2  Wils.  R.  49. 


1  The  purchaser  of  a  term  of  years  must  surrender  to  the  reversioner,  and  not  to 
the  vendor.     Bruce  v.  Halbert,  3  Monr.  64. 

2  [Where  the  statute  makes  a  reversionary  interest  liable  to  attachment  on  mesne 
process,  and  to  be  taken  on  execution  for  the  debts  of  the  owner,  the  reversion  of  a 
feme  covert  may  be  levied  on  for  debts  of  her  contracting  before  coverture.  Moore  v. 
Richardson,  37  Maine,  (2  Heath,)  438.] 


824  Title  XVII.     Reversion,    s.  24—29. 

heir  ;  and  in  such  case  the  plaintiff  may  take  judgment  of  it 
quando  accident,  (a) 

25.  In  debt  against  the  niece,  as  cousin  and  heir  to  the  uncle, 
the  obligor,  the  defendant  confessed  the  bond  by  nient  dedire, 
but  that  nothing  in  fee  simple  descended  to  her  beside  a  reversion 

of  thirty  acres  of  marsh  in  S.,  &c,  after  the  death  of  such 
339  *  a  *  one.  It  was  held  that  the  plaintiff  might  pray  a  spe- 
cial judgment  upon  the  confession,  viz.,  that  he  should 
recover  the  debt  and  damages  of  the  aforesaid  reversion,  to  be 
levied  when  it  should  fall  in  ;  and  a  special  writ  should  issue  to 
extend  the  whole  thirty  acres,  (b) 

26.  A  man,  seised  of  a  reversion  expectant  upon  an  estate  for 
life,  bound  himself  and  his  heirs  in  a  bond,  and  died,  living  the 
tenant  for  life  ;  it  was  held  that  this  reversion  should  be  assets  in 
the  hands  of  the  heir,  whenever  it  came  into  possession,  (c) 

27.  A  reversion,  expectant  on  the  determination  of  an  estate 
tail,  is  said  not  to  be  assets  during  the  continuance  of  the  estate 
tail.  But  this  is  only  because,  during  that  time,  it  is  considered 
to  be  of  no  value  ;  as  it  is  in  the  power  of  the  tenant  in  tail  to 
bar  and  destroy  it  whenever  he  pleases,  by  suffering  a  common 
recovery.  But  whenever  a  reversion  of  this  kind  falls  into  pos- 
session, it  then  becomes  assets,  (d) 

28.  A  reversion  of  this  kind  is  liable  to  the  bond  debts  of  the 
person  who  was  originally  seised  of  the  fee  simple  in  possession 
of  the  estate,  and  who  afterwards  created  the  preceding  estates. 

29.  In  a  special  verdict  it  was  found  that  John  Rowden,  the 
father  of  Richard,  (the  defendant,)  was  seised  in  fee  of  a  mes- 
suage, &c;  and,  being  so  seised,  had  issue  John  Rowden,  his 
eldest  son,  and  the  defendant ;  that  John,  the  eldest,  settled  the 
premises  on  himself  for  life,  remainder  to  John  his  eldest  son  in 
tail  male,  remainder  to  his  own  right  heirs.  After  the  death  of 
the  father,  John,  his  eldest  son,  entered  and  was  seised  in  tail, 
and  also  entitled  to  the  reversion  in  fee,  and  died  leaving  an  only 
son,  who  soon  after  died  without  issue ;  whereupon  the  lands 
descended  to  the  defendant  as  heir  to  his  nephew,  who  entered, 
and  was  seised  in  fee.  The  question  was,  whether  he  was  liable 
to  the  payment  of  a  bond  debt  of  his  father's.     The  counsel  on 

(a)  (Kellow  r.  Rowden,  Carth.  129.     Whitney  v.  Whitney,  14  Mass.  88,  91.) 

(6)  Dyer,  373,  b.  pi.  10.  (c)  Rook  v.  Clealand,  1  Ld.  Raym.  53.     Lutw.  503. 

{(I)  1  Roll.  Ab.  269.     Tit.  2,  c.  2. 


Title  XVII.     Reversion,   s.  29—31.  825 

both  sides  agreed  that  the  reversion,  having  come  into  possession 
by  the  determination  of  the  estate  tail,  was  chargeable  with  the 
debt ;  and  the  only  doubt  was,  whether  the  plaintiff  ought  to 
have  named  the  intermediate  heirs  to  the  reversion.  Three  of 
the  Judges  observed  that  the  question  was  not,  whether  the 
defendant  was  liable  to  the  debt,  but  whether  he  was  properly 
charged  as  heir  to  his  father,  or  whether  he  should  have  been 
charged  as  heir  to  his  nephew,  who  was  last  seised.  And 
it  *  must  be  admitted,  that  if  the  lands  had  descended  to  *  340 
the  brother  and  nephew  of  the  defendant  in  fee,  then  they 
ought  to  have  been  named  ;  but  they  had  only  a  reversion  in  fee, 
expectant  upon  an  estate  tail,  which  was  uncertain,  and  there- 
fore of  little  value.  But  here  the  reversion  in  fee  was  come  into 
possession,  and  the  defendant  had  the  land  as  heir  to  his  father ; 
it  was  assets  only  in  him;  and  was  not  so  either  in  his  brother 
or  nephew,  who  were  neither  of  them  chargeable  ;  because  a 
reversion,  expectant  upon  an  estate  tail,  was  not  assets,  (a) 

30.  Though  a  reversion  of  this  kind  should  be  devised  away, 
yet  it  will  still  be  assets  for  payment  of  the  bond  debts  of  the 
settlor.  For  by  the  statute  3  Wm.  and  Mary,  c.  14,  f  such  a 
devise  is  rendered  fraudulent  and  void  against  creditors. 

31.  A  settlement  was  made  in  1707  of  lands,  by  Thomas 
Delahaye  to  the  use  of  himself  for  life,  remainder  to  trustees  to 
preserve  contingent  remainders,  remainder  to  his  first  and  every 
other  son  in  tail  male,  reversion  to  his  own  right  heirs.  Thomas, 
being  indebted  by  bond  to  several  persons,  and,  among  others,  to 
one  Blacket,  gave  him  a  collateral  security  of  some  stock,  which 
was  transferred  for  that  purpose,  and  agreed  to  be  retransferred 
upon  payment  of . principal  and  interest;  and,  being  likewise 
indebted  by  simple  contract,  died  in  1724,  leaving  issue  one  son, 
Thomas.  In  1725,  there  was  a  decree  obtained,  by  which  the 
father's  estate  was  directed  to  be  sold  for  the  payment  of  his 
debts,  and  the  simple  contract  creditors  to  stand  in  the  place  of 
the  bond  creditors  ;  and,  under  this  decree,  some  fee  simple  lands 
were  sold  and  applied.     In  1738,  Thomas,  the  son,  devised  the 

(a)  Kellow  v.  Rowden,  3  Mod.  253.     (Carth.  12G,  1  Show.  244,  S.  C.) 


t  [Repealed  and  amended  enactments  substituted  by  11  Geo.  4,  and  1   Win.  4,  c.  47, 
§  2,  3,  &c.     Sec  also  3  &  4  Wm.  4,  c.  104.] 


826  Title  XVII.     Reversion,    s.  31—34. 

settled  estate  to  the  defendant,  and  died  without  issue ;  whereby 
the  estate  tail  was  spent,  and  the  reversion  in  fee  came  into  pos- 
session. The  plaintiffs  brought  their  bill  to  have  this  estate 
applied  towards  satisfaction  of  their  debts,  notwithstanding  the 
devise  of  it  by  the  son.  And  now  the  question  was,  whether 
this  reversion  in  fee  was  to  be  considered  as  real  assets  of  the 
father,  applicable  to  the  payment  of  his  debts ;  or  if  it  was  pre- 
vented from  being  so  by  the  devise  of  the  son.  (a) 

(And  it  was  decreed,  that  the  estate  descended  from  Thomas 
the  father,  and  devised  by  Thomas  the  son,  was  liable  and  should 
be  applied  in  satisfaction  of  the  debts  due  to  the  plaintiffs.1) 

32.  A  reversion  expectant  on  an  estate  tail  is  also  liable  to  the 
leases  made  by  all  those  who  were  at  any  time  entitled  to  it,  and 
to  all  the  covenants  contained  in  those  leases,  whenever  such  re- 
version comes  into  possession. 

33.  William  Martin,  being  tenant  in  tail  with  the  immediate 
reversion  in  fee  in  himself,  demised  the  premises  to  Elizabeth 
Westcombe  for  ninety-nine  years,  if  two  persons  should  so  long 
live,  to  commence  after  the  determination  of  a  preceding  lease. 
William  Martin  died,  leaving  issue  Nicholas  Martin  his  eldest 
son  and  heir ;  who,  being  the  issue  in  tail,  and  also  entitled  to 
the  immediate  reversion  in  fee,  levied  a  fine  to  the  use  of  himself 
and  his  heirs. 

It  was  resolved,  that,  as  the  reversion  in  fee  came  into  posses- 
sion by  the  operation  of  the  fine,  the  lease  became  a  charge  on 
that  reversion ;  and  could  not  be  avoided  either  by  Nicholas 
Martin,  or  the  cognizee  of  the  fine,  (b) 

34.  Charles  Lord  Shelburne,  being  tenant  in  tail  male  of  the 
lands  in  question,  with  remainder  to  his  brother   Henry  in  tail 

male,  remainder   to  his    own  right  heirs ;  demised  them 

361  *     for   three    *  lives,  with  covenants  for  perpetual   renewal. 

Charles    Lord    Shelburne  died  without  issue,  by  which 

(a)    Kynaston  v.  Clarke,  MS.  Rep.  2  Atk.  204. 
(6)  Symonds  v.  Cudraore,  4  Mod.  1.     Vide  tit.  38. 

l  By  Stat.  3  &  4  Will.  4,  c.  104,  all  the  interest  in  any  freehold,  customary  or  copy- 
hold lands,  of  which  any  person  may  die  seised,  is  made  assets  for  the  payment  of  his 
specialty  and  simple  contract  debts.  See  ante,  tit.  1,  §  56,  note.  In  the  United  States, 
all  real  property  is  made  liable  for  the  debts  of  the  owner;  and  may  be  reached,  after 
his  death,  througlvhis  executor  or  administrator;  and  in  certain  cases,  through  the  heir. 
Ibid.  §  58,  note;  Webber  v.  Webber,  6  Greenl.  127. 


Title  XVII.     Reversion,    s.  34— 35.  827 

means  his  brother  Henry  became  entitled  to  an  estate  in  tail 
male  in  the  premises,  with  the  reversion  in  fee  in  himself.  In 
the  year  1697,  Henry  Lord  Shelburne  levied  a  fine  of  those 
lands ;  and,  in  consideration  of  his  marriage,  settled  them  on 
himself  for  life,  with  remainder  to  his  first  and  other  sons. 

The  lessees  having  claimed  a  renewal  on  the  death  of  some  of 
the  persons  for  whose  lives  the  leases  were  granted,  Henry  Lord 
Shelburne  refused  to  renew,  alleging,  that  as  his  brother  Charles 
was  only  tenant  in  tail  of  the  lands  comprised  in  those  leases,  he 
had  no  power  to  make  them,  and  was  not  bound  by  the  covenants 
for  renewal. 

The  Court  of  Exchequer  in  Ireland  decreed  that  Henry  Lord 
Shelburne  should  renew  those  leases.  From  this  decree  there 
was  an  appeal  to  the  House  of  Lords,  wTho  affirmed  the 
decree,  (a) 

*  35.  All  particular  estates  are  subject  to  merge  in  the  *  362 
reversion,  whenever  the  same  person  becomes  entitled  to 
both,  except  estates  tail.  And  when,  previously  to  the  statute 
3  &  4  Will.  IV.  c.  74,  the  protection  of  the  Statute  De  Bonis 
Conditionalibus  was  taken  away  from  estates  tail,  and  they  were 
converted  into  base  fees,  then  they  merged  in  the  reversion,  and 
became  liable  to  the  charges  and  leases  of  all  those  who  were  at 
any  time  entitled  to  such  reversion ;  but  now,  by  the  39th  sec- 
tion of  the  above  statute,  such  base  fees  do  not  merge,  (b) 

(a)  Shelburne  v.  Biddulph,  6  Bro.  Pari.  Ca.  356. 

(b)  Tit.  35,  c.  12.     Tit.  39,  Merger. 


828 


TITLE   XVIII. 

JOINT   TENANCY. 
BOOKS   OF   REFERENCE    UNDER   THIS    TITLE. 

Blackstone's  Commentaries.     Book  II.  ch.  12. 

Kent's  Commentaries.     Vol.  IV.  Lect.  64. 

Coke  upon  Littleton,  179,  b. — 188,  a. 

Flintoff  on  Real  Property.     Vol.  II.  Book  I.  ch.  5,  §  2. 

Preston  on  Abstracts  of  Title.     Vol.  II.  p.  62—68. 

Lomax's  Digest.     Vol.  I.  tit.  15. 

Charles  Blake  Allnatt.     A  Practical  Treatise  on  the  Law  of  Partition. 

CHAP.  I. 

NATURE   OF   AN   ESTATE   IN  JOINT   TENANCY. 

CHAP.  II. 

HOW    A    JOINT    TENANCY    MAY    BE    SEVERED    AND    DESTROYED. 


CHAP.  I. 


NATURE   OF   AN   ESTATE   IN   JOINT   TENANCY. 

Sect.     1.  Estates  in  Severalty. 
2.  In  Joint  Tenancy. 

11.  Circumstances     required    to 

this  Estate. 

12.  Unity  of  Interest. 

16.  Unity  of  Title. 

17.  Unity  of  Time. 
26.  Unity  of  Possession. 


Sect.  45.  Husband  and  Wife  cannot  be 
Joint   Tenants. 
51.  Not    subject  to    Curtesy    or 

Dower. 
53.  Joint  Tenants  cannot  charge 

their  Estates. 
57.  Except  by  Lease. 
59.  In  what  Acts  they   must  all 
27.  Joint    Tenancies    go    to   the  ;    .  join. 

Survivor.  63.  The  possession  of  one  is  that 

33.  Not  favored  in  Equity.  of  the  other. 

38.   Who  may  be  Joint  Tenants.  65.  Remedies  against  each  other. 

Section  1.  With  respect  to  the  number  and  connection  of  the 
owners  of  real  estates,  lands  and  tenements  may  be  held  in  four 
different  ways ;  namely,  in  severalty,  joint  tenancy,  coparcenary, 
and  common. 


Title  XVIII.    Joint  Tenancy.     Ch.  I.  s.  1—2.         829 

Where  a  person  holds  lands  in  his  own  right  only,  without  hav- 
ing any  other  joined  or  connected  with  him  in  point  of  interest, 
during  the  estate  therein,  he  is  said  to  hold  in  severalty. 

*  2.  But  where  lands  are  granted  to  two  or  more  per-  *  364 
sons,  to  hold  to  them  and  their  heirs,  or  for  term  of  their 
lives,  or  for  term  of  another's  life,  without  any  restrictive,  exclu- 
sive, or  explanatory  words ;  all  the  persons  named  in  such  instru- 
ment, to  whom  the  lands  are  so  given,  take  a  joint  estate,  and 
are  called  joint  tenants.  For  the  law  will  interpret  a  grant  of 
this  kind,  so  as  to  make  all  its  parts  take  effect,  which  can  only 
be  done  by  creating  an  equal  interest  in  all  the  persons  who  take 
under  it.  (a)  f  1 

(n)  Lit.  §  277.     (Aveling  v.  Knipe,  19  Ves.  441.) 

t  [  Sometimes  lands  are  ignorantly  conveyed  or  devised  to  two  (trustees)  and  the 
survivor  of  them  and  the  heirs  of  the  survivor ;  this  does  not  create  a  joint  tenancy  in 
fee,  but  gives  a  joint  estate  for  life,  and  a  contingent  remainder  to  the  survivor.  Until 
the  contingency  happens,  the  fee  results  to  the  grantor,  or  to  the  heir  at  law  of  the 
devisor.  3  Anstr.  836  ;  2  Ves.  jr.  209,  210  ;  Butl.  Co.  Lit.  191,  a,  note  (1) ;  Fearne, 
C.  R.  357.] 

1  In  the  United  States,  the  general  rule  is,  that  all  estates  vested  in  two  or  more  per- 
sons, are  to  be  deemed  tenancies  in  common,  unless  a  different  tenure  is  clearly  ex- 
pressed or  implied  in  the  instrument  creating  the  estate.  So  it  is  declared,  in  the 
statutes  of  Maine,  New  Hampshire,  Massachusetts,  Vermont,  Rhode  Island,  New  York, 
New  Jersey,  Delaware,  Michigan,  Indiana,  Illinois,  Missouri,  and  Arkansas.  In  several 
of  these  States,  however,  certain  cases  are  specially  excepted  from  the  operation  of  the 
statutes ;  thereby  leaving  them  to  be  governed  by  the  rules  of  the  common  law.  Thus, 
all  estates,  vested  in  trustees  and  executors  as  such,  are  excepted  in  the  statutes  of 
New  York,  Michigan,  Indiana,  Illinois,  Missouri,  aud  Arkansas.  Mortgages,  also,  are  ex- 
cepted in  the  statutes  of  Maine,  Michigan,  and  Indiana ;  and  conveyances  to  husband 
and  wife  also  are  excepted,  in  the  statutes  of  Massachusetts,  Vermont,  Michigan,  and  In- 
diana;  and  by  construction,  in  New  Jersey.  Den  v.  Hardenberg,  5  Halst.  42.  In  other 
States,  the  only  change  by  statute,  is  the  abolition  of  the  jus  accrescendi,  or  right  of 
survivorship.  This  has  been  done,  without  any  exception,  in  Georgia,  Florida,  Kentucky, 
Mississippi,  Alabama,  and  Virginia ;  [but  the  statute  in  Alabama,  applies  only  to  those 
who  hold  the  property  in  their  own  right  and  not  to  those  who  hold  as  trustees  merely, 
or  in  autre  droit.  Parsons  v.  Boyd,  20  Ala.  112] ;  and  in  Pennsylvania,  with  the  ex- 
ception of  estates  vested  in  trustees ;  and  in  North  Carolina  and  Tennessee,  with  the 
exception  of  estates  held  by  commercial  partners,  as  partnership  property.  In  Con- 
necticut, the  existence  of  the  right  of  survivorship  has  been  denied  by  the  Courts.  1 
Root,  48.  In  Ohio,  also,  the  Courts  have  declared  that  estates  in  joint  tenancy  were 
always  unknown.  Walker's  Introd.  p.  292  ;  Sergeant  v.  Steinberger,  2  Ohio  R.  300  ; 
White  v.  Sayre,  Ibid.  103 ;  Miles  v.  Fisher,  10  Ohio  R.  1. 

See  Maine,  Rev.  St.  1840,  ch.  91.  §  13  ;  N.  Hamp.  Rev.  St.  1842,  ch.  129,  §  2,  3  ; 
Mass.  Rev.  St.  ch.  59,  §  10,  11  ;  Verm.  Rev.  St.  1839,  ch.  59,  §  2,  3  ;  R.  Island,  Rev. 
St.  1844,  p.  197,  §  16  ;  N.  York,  Rev.  St.  Vol.  II,  p.  12.  §  44,  3d  ed. ;  Elm.  Dig.  p.  86, 
§  38;  Penn.  Dunlop,  Dig.  p.  240,  ch.  190  ;  Delaware,  Rev.  St.  1829,  p.  167  ;  Tate's 

vol.  i.  70 


830  Title  XVIII.     Joint  Tenancy.     Ch.  I.  s.  3 — 4. 

3.  An  estate  in  joint  tenancy  can  arise  only  by  purchase  or 
grant,  that  is,  by  the  act  of  the  parties,  and  never  by  the  mere 
act  of  law.  As  to  the  words  by  which  this  estate  may  be  cre- 
ated, the  cases  on  that  point  will  be  stated  in  Title  XXXII. 
Deed,  and  Title  XXXVIII.  Devise.1 

4.  An  estate  in  joint  tenancy  may  be  had  in  remainder.  Thus 
if  a  gift  be  made  to  two  men,  and  the  heirs  of  their  two  bodies, 
remainder  to  them  two  and  their  heirs  ;  they  are  joint  tenants  of 
the  remainder  in  fee.  (a)  2 

(a)  1  Inst.  183,  b. 

Dig.  p.  725  ;  1  Lomax,  Dig.  p.  477 ;  N.  Car.  Rev.  St.  Vol.  I.  p.  258  ;  Georgia,  Rev.  St. 
1845,  p.  413,  ch.  15,  §  46  ;  Florida,  Rev.  St.  1845  ;  Thompson's  Dig.  p.  191 ;  Michi- 
gan, Rev.  St.  1837,  p.  258,  §  8,  9;  Kentucky,  Rev.  St.  1834,  Vol.  II. p.  876,  877  ;  Tenn. 
Rev.  St.  1836,  p.  417  ;  Indiana,  Rev.  St.  1843,  ch.  28,  §  18,  19  ;  Illinois,  Rev.  St.  1839, 
p.  149 ;  Missouri,  Rev.  St.  1845,  ch.  32,  §  13;  Mississippi,  Rev.  St.  1840,  ch.  34,  §  59  ; 
Ala.  Toulm.  Dig.  p.  249 ;  Ark.  Rev.  St.  1837,  ch.  31,  §  9.  [See  Maryland  Act,  1822, 
c.  162.     Craft  v.  Wilcox,  4  Gill,  504.] 

It  has  been  held  in  Massachusetts,  that  a  conveyance  to  two  or  more  in  mortgage,  [to 
secure  a  debt  jointly  due  to  the  mortgagees,]  creates  a  joint  tenancy,  [until  the  mort- 
gage is  foreclosed,]  notwithstanding  the  statute  ;  on  the  ground  that  as,  upon  the  death 
of  one,  the  remedy  to  recover  the  debt  would  survive,  it  is  clearly  to  be  implied  that  the 
parties  intended  that  the  collateral  security  should  follow  and  comport  with  the  remedy. 
Appleton  v.  Boyd,  7  Mass.  131  ;  Goodwin  v.  Richardson,  11  Mass.  469.  [But  after 
foreclosure  such  estate  is  held  by  the  mortgagees  as  tenants  in  common.  Goodwin  v. 
Richardson,  ubi  supra.]  But  this  was  denied  by  Story,  J.,  and  the  contrary  held,  under 
a  similar  statute  of  Rhode  Island,  in  Randall  v.  Phillips,  3  Mason,  R.  378.  [See  Root 
v.  Bancroft,  10  Met.  44,  and  Root  v.  Stow,  13  lb.  5.] 

The  statute  of  Virginia,  abolishing  the  jus  accrescendi,  has  been  held  to  extend  to 
partnership  property,  as  well  as  all  other.     Delancy  v.  Hutchinson,  2  Rand.  183. 

In  most  of  the  statutes  turning  joint  tenancies  into  tenancies  in  common,  it  is  expressly 
declared  that  the  law  shall  apply  as  well  to  existing  jointHenancies  as  to  those  afterward 
to  be  created.  But  it  is  held  that  the  statutes  have  this  effect,  proprio  vigore,  and  with- 
out any  such  express  words  ;  the  law  being  beneficial,  by  rendering  the  tenure  more  cer- 
tain and  valuable.  Miller  v.  Miller,  16  Mass.  61  ;  Bornbaugh  v.  Bombaugh,  11  S.  & 
R. 191. 

Grants  of  townships  to  several  persons,  by  the  State,  have  always  been  deemed  to 
create  tenancies  in  common,  on  the  ground  of  intention  in  the  State,  and  of  public 
policy.  Higby  v.  Rice,  5  Mass.  350  ;  University,  &c.  v.  Reynolds,  3  Verm.  543.  [It  is 
not  sufficient  that  the  words  employed  by  the  parties,  would,  but  for  the  act  of  Mary- 
land, 1822,  ch.  162,  be  construed  to  create  a  joint  tenancy,  unless  the  instrument  ex- 
pressly provides  that  the  land  shall  be  held  in  joint  tenancy.  Purdy  v.  Purdy,  3  Md. 
Ch.  Decis.  547.] 

1  If  two  or  more  jointly  disseise  another  they  become  joint  tenants  by  this  act,  as 
well  as  if  it  were  a  grant.  Lit.  §  278  ;  Putney  v.  Dresser,  2  Met.  583,  586.  [But  see 
Fowler  v.  Thayer,  4  Cush.  111.] 

2  A  devise  to  A  for  life,  remainder  to  B  and  C,  and  their  heirs,  makes  them  joint 
tenants.     Campbell  v.  Heron,  1  Tayl.  199. 


Title  XVIII.     Joint  Tenancy.     Cli.  I.  s.  5—7.         831 

5.  Where  lands  are  conveyed  to  two  persons,  and  the  heirs  of 
one  of  them,  they  are  joint  tenants  for  life,  and  the  fee  simple  is 
in  one  of  them.  If  the  person  who  has  the  fee  dies,  the  other 
shall  hold  the  entirety,  by  survivorship,  during  his  life.  In  the 
same  manner,  where  lands  are  given  to  two  persons,  and  the 
heirs  of  the  body  of  one  of  them,  they  are  joint  tenants  for  life, 
and  the  estate  tail  is  in  one  of  them,  (a) 

6.  Lord  Coke  says,  when  land  is  given  to  two,  and  to  the 
heirs  of  one  of  them,  he  in  remainder  cannot  grant  away  his  fee 
simple. 

Mr.  Hargrave  observes  that  there  is  a  seeming  difficulty  in 
this  passage,  but  conceives  Lord  Coke's  meaning  to  be,  that 
though  for  some  purposes  the  estate  for  life  of  the  joint  tenant 
having  the  fee  is  distinct  from,  and  unmerged  in,  his  greater 
estate ;  yet  for  granting,  it  is  not  so ;  but  both  estates  are  in  that 
respect  consolidated,  notwithstanding  the  estate  of  the  other  joint 
tenant.  Therefore,  that  the  fee  cannot,  in  strictness  of 
law,  *  be  granted  as  a  remainder,  eo  nomine,  and  as  an  *  365 
interest  distinct  from  the  estate  for  life,  (b) 

7.  Two  persons  may  have  an  estate  in  joint  tenancy  for  their 
lives,  and  yet  have  several  inheritances.  Thus  Littleton  says, 
"  If  lands  be  given  to  two  men,  and  to  the  heirs  of  their  bodies 
begotten,  the  donees  have  a  joint  estate  for  term  of  their  lives, 
and  yet  they  have  several  inheritances.  For  if  one  of  the  donees 
hath  issue  and  die,  the  other  which  surviveth  shall  have  the 
whole  term  for  his  life  ;  and  if  he  which  surviveth  also  have 
issue  and  die,  then  the  issue  of  one  shall  have  one  moiety,  and 
the  issue  of  the  other  the  other  moiety ;  and  they  shall  hold  the 
land  between  them  in  common,  and  are  not  joint  tenants,  but 
tenants  in  common.  And  the  cause  why  such  donees  have  a 
joint  estate  for  term  of  their  lives  is,  for  that  at  the  beginning, 
the  lands  were  given  to  them  two  ;  which  words,  without  more 
saying,  make  a  joint  estate  to  them  for  term  of  their  lives.  And 
the  reason  why  they  shall  have  several  inheritances  is  this,  inas- 
much as  they  cannot  by  any  possibility  have  an  heir  between 
them,  as  a  man  and  a  woman  may,  the  law  will  that  their  estate 
and  inheritance  be  such  as  is  reasonable,  according  to  the  form 
and  effect  of  the. words  of  the  gift;  and  this  is,  to  the  heirs 

(«)  Lit.  h  285.  (6)  1  Inst.  184,  b.  n.  2. 


832        Title  XVIII.    Joint  Tenancy.     Ch.  I.  s.  7—11. 

which  the  one  shall  beget  of  his  body  by  any  of  his  wives  ;  and 
to  the  heirs  which  the  other  shall  beget  of  his  body  by  any  of  his 
wives  ;  so  as  it  behooveth  by  necessity  of  reason  that  they  have 
several  inheritances."  (a) 

8.  Littleton  says,  it  is  the  same  where  lands  are  given  to  two 
females,  and  the  heirs  of  their  two  bodies.  And  Lord  Cowper 
has  observed  that  where  there  was  a  devise  to  the  testator's  two 
daughters,  and  the  heirs  of  their  two  bodies,  it  was  a  joint  estate 
for  life,  with  several  inheritances.  But  the  testator  never  meant 
that  the  surviving  daughter  should  turn  out  the  issue  of  her 
deceased  sister,  (b)  That  was  the  point  upon  the  appeal  in  Wil- 
kinson v.  Spearman,  where  the  Lords  inclined  to  the  appellant ; 
yet  the  Judges  all  agreeing  that  the  law  was  so  settled,  the 
Lords  would  not  alter  it.  His  Lordship  also  said  that  a  devise 
to  the  testator's  two  daughters  and  their  issue,  and  in  default  of 
such  issue,  to  J.  S.,  gave  them  a  joint  estate  for  life,  and  several 
inheritances,  (c) 

9.  If  a  person  gives  lands  to  two  men  and  one  woman,  and 

the  heirs  of  their  three  bodies  begotten ;  in  this  case  they 
366  *    have  *  several  inheritances.     For  though  it  might  be  said 

that  the  woman  may  by  possibility  marry  both  the  men, 
one  after  another ;  yet,  first,  she  cannot  marry  them  both  in 
prcesenti;  and  the  law  will  never  intend  a  possibility  upon  a 
possibility ;  as  first  to  marry  the  one,  and  then  to  marry  the 
other.  So  it  is  if  a  gift  be  made  to  one  man  and  two  women, 
mutatis  mutandis,  (d) 

10.  In  the  same  manner,  if  a  gift  in  tail  be  made  to  a  man 
and  to  his  mother,  or  to  a  man  and  to  his  sister,  or  his  aunt,  the 
parties  take  several  inheritances ;  because  they  cannot  marry. 
Lord  Coke  says  that  in  all  these  cases  there  is  no  division  be- 
tween the  estates  for  life,  and  the  several  inheritances ;  for  they 
cannot  convey  away  the  inheritance  after  their  decease,  because 
it  is  divided  only  in  supposition  and  consideration  of  law ;  and 
to  some  purposes  the  inheritance  is  said  to  be  executed,  (e) 

11.  The  nature  of  a  joint  tenancy  requires  the  following  cir- 
cumstances:  1.  Unity  of  interest.  2.  Unity  of  title.  3.  Unity  of 
time.    4.  Unity  of  possession ;   or,  in  other  words,  joint  tenants 

(a)  Lit.  $  283.  (6)  Lit.  §  284.     Cook  v.  Cook,  2  Vera.  545. 

(c)  Printed  Cases,  1705.    2  P.  Wms.  530.  (d)  1  Inst.  184,  a. 

(e)  1  Inst.  182,  b.  184,  a. 


Title  XVIII.    Joint  Tenancy.     Ch.  I.  s.  11—16.       833 

have  one  and  the  same  interest,  accruing  by  one  and  the  same 
conveyance,  commencing  at  the  same  time,  and  held  by  one  and 
the  same  undivided  possession. 

12.  With  respect  to  unity  of  interest,  one  joint  tenant  cannot 
be  entitled  to  one  period  of  duration,  or  quantity  of  interest,  and 
the  other  to  a  different  one.  One  cannot  be  tenant  for  life,  and 
the  other  for  years ;  one  cannot  be  tenant  in  fee,  and  the  other 
tenant  in  tail.  It  has,  however,  been  stated  that  where  an  estate 
is  limited  to  two  persons,  and  to  the  heirs  of  one  of  them,  they  are 
joint  tenants  for  life,  (a) 

13.  If  a  man  demises  lands  to  two  persons,  to  hold  to  the  one 
for  life,  and  to  the  other  for  years,  they  are  not  joint  tenants. 
For  an  estate  of  freehold  cannot  stand  in  jointure  with  a  term  of 
years,  and  a  reversion  upon  a  freehold  cannot  stand  in  jointure 
with  a  freehold  and  inheritance  in  possession,  (b) 

14.  It  is,  however,  said  by  Lord  Coke,  that  a  right  of  action 
and  a  right  of  entry  may  stand  in  jointure}  For  at  common  law, 
the  alienation  of  the  husband  was  a  discontinuance  to  the  wife 
of  one  moiety,  and  a  disseisin  of  the  other ;  so,  as  after  the  death 
of  the  husband,  the  wife  had  a  right  of  action  to  one  moiety, 
and  the  other  joint  tenant  a  right  of  entry  into  the  other  ; 

*  but  they  were  joint  tenants  of  the  right,  because  they  *367 
might  join  in  a  writ  of  right,  (c) 

15.  Secondly,  that  a  right  of  action,  or  a  bare  right  of  entry, 
cannot  stand  in  jointure  with  a  freehold  or  inheritance  in  posses- 
sion ;  therefore,  if  the  husband  made  a  feoffment  of  the  moiety, 
this  was  a  discontinuance  of  that  moiety ;  and  the  other  joint 
tenant  remained  in  possession  of  the  freehold  and  inheritance  of 
the  other  moiety ;  which,  for  the  time,  was  a  severance  of  the 
jointure,  (d) 

16.  As  to  unity  of  title,  the  estate  of  joint  tenants  must  be 
created  by  the  same  act  or  instrument,  whether  legal  or  illegal ;  as 

(a)  Ante,  §  5.  (b)  1  Inst.  188,  a.  (c)  1  Inst.  188,  a.  {d)  1  Inst.  188,  a. 

1  The  case  put  by  Lord  Coke  is,  where  a  husband  and  wife  and  a  third  person  pur- 
chased land  to  them  and  their  heirs  ;  whereby  the  husband  and  wife  acquired  a  moiety, 
and  the  third  person  the  other  moiety;  and  the  husband  aliened  the  whole  to  a  stranger 
in  fee,  and  died.  Here,  the  wife  had  a  right  of  action  only,  the  husband's  alienation 
having  discontinued  her  estate,  by  the  common  law;  and  the  third  person  had  a  right 
of  entry.     1  Inst.  187,6. 

70* 


834        Title  XVIII.    Joint  Tenancy.     Oh.  I.  5.  16—21. 

by  one  and  the  same  feoffment,  grant,  fine,  or  other  conveyance 
or  assurance,  or  by  one  and  the  same  disseisin ;  for  a  joint  ten- 
ancy cannot  arise  by  descent  or  act  of  law,  as  has  been  already 
observed,  but  only  by  purchase  or  acquisition  of  the  party. 

17.  With  respect  to  unity  of  time,  the  estate  must  become 
vested  in  all  the  joint  tenants  at  one  and  the  same  instant,  as 
well  as  by  one  and  the  same  title.  Thus,  if  lands  be  demised  for 
life,  remainder  to  the  right  heirs  of  J.  S.  and  J.  N.,  J.  S.  hath 
issue  and  dies,  and  afterwards  J.  N.  hath  issue  and  dies,  the  issues 
are  not  joint  tenants  ;  because  the  one  moiety  vested  at  one  time, 
and  the  other  moiety  at  another  time,  (a) 

18.  Lord  Coke,  however,  says,  that  in  some  cases  there  may 
be  joint  tenants,  and  yet  the  estate  may  vest  in  them  at  several 
times.  Thus,  if  a  man  makes  a  feoffment,  to  the  use  of  himself, 
and  of  such  wife  as  he  shall  afterwards  marry,  for  term  of  their 
lives ;  and  after  he  takes  a  wife,  they  are  joint  tenants  ;  and  yet 
they  come  to  their  estates  at  several  times,  (b) 

19.  A  man  made  a  feoffment  in  fee,  to  the  use  of  himself  for 
life  ;  then  to  the  use  of  every  one  of  his  issue  female,  and  to  the 
heirs  of  their  bodies ;  then  to  the  issue  of  one  daughter  at  one 
time,  of  a  second  daughter  at  another  time,  and  of  a  third  daugh- 
ter at  another  time ;  so  that  this  was  to  vest  severally  in  them, 
and  afterwards  to  all.  Lord  Coke  said  it  was  adjudged  that  they 
were  joint  tenants ;  and  yet  they  came  in  at  several  times  ;  but 
the  reason  of  this  was,  because  the  root  was  joint,  (c) 

20.  A  person  devised  lands  to  his  two  sons,  and  the  heirs  of 

their  bodies  ;  and  that  his  executors  should  have  them 
368*     until  they  *came  to  their    several   ages    of  twenty-one 

years.  The  question  was,  whether  one  of  them  might 
enter ;  for  it  was  objected  that  it  was  a  joint  estate  to  them, 
which  could  not  be,  if  they  should  have  several  commencements. 
But  four  of  the  Judges  were  of  opinion,  that  when  either  of  them 
came  to  the  age  of  twenty-one,  he  should  then  have  his  part  and 
possession  ;  and  yet  the  joint  tenancy  should  take  place,  (d) 

21.  A  person  levied  a  fine  to  the  use  of  himself  for  life,  re- 
mainder to  his  wife  for  life,  remainder  to  Sir  Peter  Temple  and 
Anne,  his  wife,  for  their  lives,  and  the  life  of  the  survivor  of  them, 
remainder  to  their  first  and  other  sons  in  tail,  remainder  to  the 

(a)  1  Inst.  188,  a.  (6)  1  Inst.  188,  a.     Gilb.  Uses,  71.     Tit.  16,  c.  5. 

(c)  Blanclford  v.  Blandford,  3  Bulst.  101.  (c7)  Aylor  v.  Chep,  Cro.  Jac.  259. 


Title  XVIII.     Joint   Tenancy.     Ch.  I.  s.  21—26.        835 

issues  female  of  their  bodies,  and  the  heirs  of  their  bodies  be^ot- 
ten.  Sir  Peter  Temple  had  issue  by  Anne,  two  daughters,  Anne 
and  Martha.  Martha  died  without  issue  ;  afterwards  Anne  died. 
It  was  argued  that  the  two  sisters  were  tenants  in  common.  But, 
per  Holt,  the  estate  was  limited  by  way  of  use  to  the  issues  fe- 
male, and  issues  female  comprehended  all  issues  female.  Then 
the  case  was,  tenant  for  life,  remainder  to  all  his  issues  female, 
&c.  If  the  tenant  for  life  has  but  one  daughter,  she  shall  have 
the  whole  estate  tail ;  if  he  has  more  daughters,  they  shall  be 
joint  tenants  for  life,  with  several  inheritances.  The  case  in 
Coke,  Lit.  188,  a,  of  a  feoffment  to  the  use  of  himself  for  life, 
and  of  such  wife  as  he  should  afterwards  many,  and  then  he 
marries,  he  and  his  wife  are  joint  tenants,  would  rule  the  case  in 
question ;  for  it  was  a  joint  claim  by  the  same  conveyance  which 
made  joint  tenants,  and  not  the  time  of  vesting,  (a) 

22.  Lands  were  devised  to  a  woman  and  her  children,  on  her 
body  begotten,  or  to  be  begotten,  by  W.  A.  and  their  heirs  for- 
ever. It  was  determined  that  the  devisee  and  all  her  children 
took  as  joint  tenants  ;  and  it  was  no  objection  that  by  this  means 
the  several  estates  might  commence  at  different  times,  (b) 

23.  Although  some  of  the  persons  to  whom  an  estate  is  limited 
be  in  by  the  common  law,  and  others  by  the  Statute  of  Uses,  yet 
they  will  take  in  joint  tenancy. 

24.  A  fine  was  levied  to  A  and  B,  to  the  use  of  the  said  A 
and  B,  and  also  to  C.  Adjudged,  that  they  were  all  joint  tenants  ; 
though  A  and  B  were  in  by  the  fine,  and  C  by  the  Statute  of 
Uses,  (c) 

25.  In  a  modern  case,  which  will  be  stated  hereafter,   Lord 
Thurlow  held,  that  whether  a  settlement  was  to  be  con- 
sidered as  *  a  conveyance  of  a  legal  estate,  or  a  deed  to     *  369 
uses,  would  make  no  difference ;  and  that  the  vesting  at 
different  times  would  not  prevent  its  being  a  joint  tenancy,  (d) 

26.  With  respect  to  unity  of  possession,  joint  tenants  are  said 
to  be  seised  per  my  et  per  tout;  that  is,  each  of  them  has  the 
entire  possession,  as  well  of  every  part,  as  of  the  whole.  They 
have  not  one  of  them  a  seisin  of  one  half,  and  the  other  of  the 
remaining  half ;  neither  can  one  be  exclusively  seised  of  one  acre, 
and  his  companion  of  another ;  but  each  has  an  undivided  moiety 

(a)  Sussex  v.  Temple,  1  Ld.  Raym.  310.    Ante,  §  18.  (6)  Outes  v.  Jackson,  2  Stra.  1172. 

(c)  Watts  v.  Lee,  Noy,  124.    Sammes's  case,  tit.  32,  c.  21.  (</)  Stratton  v.  Best,  Idem. 


836        Title  XVIII.    Joint  Tenancy.     Ch.  I.  s.  26—30. 

of  the  whole,  not  the  whole  of  an  undivided  moiety.  From 
which  it  followed  that  the  possession  and  seisin  of  one  joint 
tenant  was  the  possession  and  seisin  of  the  other.f 

27.  The  union  and  entirety  of  interest  which  exists  between 
joint  tenants  has  given  rise  to  the  principal  incident  to  this  estate 
which  is  the  right  of  survivorship.  Thus  Littleton  says  : — "  If 
three  joint  tenants  be  in  fee  simple,  and  the  one  hath  issue  and 
dieth,  yet  they  which  survive  shall  have  the  whole  tenements, 
and  the  issue  shall  have  nothing.  And  if  the  second  joint  tenant 
hath  issue,  and  die,  yet  the  third  which  surviveth  shall  have  the 
whole  tenements,  to  him  and  his  heirs  forever."  (a) 

28.  The  right  of  survivorship  takes  place  in  estates  for  years, 
as  well  as  in  freehold  estates.  Thus  Littleton  says : — ■"  If  a 
lease  of  lands  or  tenements  be  made  to  many  for  term  of  years, 
he  which  surviveth  of  the  lessees  shall  have  the  tenements  only, 
during  the  term,  by  force  of  the  same  lease."  And  this  benefit 
of  survivorship  takes  place  on  a  lease  for  years  to  two,  though 

one  of  the  lessees  dies  before  entry,  (b) 
370  *         *  29.  The  trust  of  a  term  in  joint  tenancy  shall  go  to 

the  survivor,  in  equity  as  well  as  at  law. 
30.  A  lease  was  made  for  ninety-nine  years,  in  trust  for 
Eleanor  and  Mary  Smith.  Eleanor  died  ;  her  executor  obtained 
an  assignment  of  the  lease  from  the  trustee ;  the  administrator 
of  the  other  sister  brought  a  bill  to  have  the  whole  term  by 
survivorship.  Lord  Cowper  said,  a  trust  of  a  term  must  go  as 
the  term  at  law  would  have  gone ;  and  as  survivorship  would 
have  taken  place  at  law,  it  must  do  so  in  equity.  Decreed,  the 
defendant  to  account  for  the  profits  from  the  death  of  Eleanor, 
and  to  assign  the  term  to  the  plaintiffs,  or  as  they  should  ap- 
point, (c) 

(a)  Lit.  §  280.  (b)  Lit.  §  281.     1  Inst.  46,  b. 

(c)  Aston  v.  Smallman,  2  Vern.  556.    2  P.  Wms.  530. 

ft  But  now  by  the  statute  3  &  4  Will.  4,  c.  27,  §  12,  the  above  rule  is  in  some  measure 
qualified.  The  words  of  the  act  arc  :  "  That  when  any  one  or  more  of  several  persons, 
entitled  to  any  land  or  rent  as  coparceners,  joint  tenants,  or  tenants  in  common,  shall 
have  been  in  possession  or  receipt  of  the  entirety,  or  more  than  his  or  their  undivided 
share  or  shares  of  such  land  or  of  the  profits  thereof,  or  of  such  rent  for  his  or  their 
own  benefit,  or  for  the  benefit  of  any  person  or  persons  other  than  the  person  or  per- 
sons entitled  to  the  other  share  or  shares  of  the  same  land  or  rent,  such  possession  or 
receipt  shall  not  be  deemed  to  have  been  the  possession  or  receipt,  of  or  by  such  last- 
mentioned  person  or  persons,  or  any  of  them."] 


Title  XVIII.    Joint  Tenancy.     Ch.  I.  5.  31—34.         837 

31.  Two  joint  purchasers  of  a  lease  for  years  assigned  it  to  a 
third  person,  who  was  a  friend  of  one  of  the  joint  tenants,  with 
the  consent  of  the  other ;  but  it  was  without  consideration,  and 
no  declaration  of  trust  was  given  ;  which  the  defendant  confessed 
in  his  answer.  The  question  was,  whether  this  trust  should 
result  for  the  benefit  of  the  survivor,  or  whether  the  creditors  of 
the  joint  tenant  who  died  should  come  in  for  an  equal  moiety  in 
equity.  The  two  joint  tenants  had  continued  to  receive  the 
profits  jointly,  after  the  assignment.  The  Court  was  of  opinion 
that  though  the  right  of  survivorship  was  looked  upon  as  odious 
in  equity ;  yet,  in  this  case,  the  trust  should  survive,  for  the 
benefit  of  the  surviving  cestui  que  trust  only,  (a) 

32.  There  are,  however,  some  cases,  in  which  there  may  be  a 
joint  tenancy,  without  an  equal  right  of  survivorship.  Thus,  if 
lands  are  let  to  A  and  B  during  the  life  of  A,  if  B  dies,  A 
shall  have  all  by  survivorship;  but  if  A  dies,  B  shall  have 
nothing,  (b) 

33.  As  the  right  of  survivorship  is  often  attended  with  hard- 
ship and  injustice,  the  courts  of  equity  have  taken  a  latitude  in 
construing  against  joint  tenancies,  on  the  ground  of  intent.1 

34.  Thus,  where  two  persons  advanced  a  sum  of  money  by 
way  of  mortgage,  took  the  mortgage  to  themselves  jointly,  and 
then  one  of  them  died.  Decreed,  that  when  the  money  came  to 
be  paid,  the  survivor  should  not  have  the  whole,  but  that  the 
representative  of  the  person  who  died  should  have  a  propor- 
tion, (c)  f 

(a)  Rex  v.  Williams,  Bunb.  342.  (b)  1  Inst.  181,  b. 

(c)  Petty  v.  Styward,  1  Ab.  Eq.  290. 


1  The  common  law  favored  survivorship,  because  it  prevented  the  severance  and 
multiplication  of  feudal  services,  and  strengthened  the  feudal  connection.  But  this 
reason  ceased,  on  the  abolition  of  feudal  tenures,  in  the  reign  of  Charles  2,  4  Kent, 
Comm.  361. 

t  [It  frequently  occurs  that  settlement-moneys  are  lent  by  the  trustees  upon  mort- 
gage, and  in  the  mortgage  deed  no  notice  is  taken  of  the  settlement,  in  order  that  it 
may  no*  incumber  the  mortgagor's  title :  the  mortgage  is  made  to  the  trustees  in  fee, 
and  upon  the  face  of  the  security  the  trustees  appear  to  be  the  beneficial  owners  of  the 
money  advanced  ;  so  that  although  the  legal  estate  survives  upon  the  death  of  cither  of 
the  trustees,  the  survivor  cannot,  consistently  with  the  equitable  doctrine  above  stated, 
give  a  complete  discharge  for  the  mortgage  money  when  paid  oft".  In  order  to  obviate 
this  inconvenience  in  the  case  of  trust  money,  it  is  proper  to  insert  a  clause  that  upon 
the  death  of  either  of  the  mortgagees  the  receipt  of  the  survivor,  his  executors,  &c,  shall 
be  a  sufficient  discharge  for  the  whole  money,  and  that  the  survivor,  his  heirs,  &c.,  may 


838  Title  XVIII.    Joint  Tenancy.     Ch.  I.  s.  35—36. 

371  *         *  35.  It  was  laid  down  by  Sir  Joseph  Jekyll,  that  if 

two  or  more  purchase  lands,  advance  the  money  in  equal 
proportions,  and  take  a  conveyance  to  them  and  their  heirs,  it  is 
a  joint  tenancy;  that  is,  a  purchase  by  them  jointly  of  the  chance 
of  survivorship.  But  when  the  proportions  of  the  money  are  not 
equal,  and  this  appears  in  the  deed  itself,  it  makes  them  in  the 
nature  of  partners  ;  and  however  the  legal  estate  may  survive, 
yet  the  survivor  shall  be  considered  but  as  a  trustee  for  the  other, 
in  proportion  to  the  sums  advanced  by  each  of  them.  So  if  two 
or  more  make  a  joint  purchase  ;  afterwards  one  of  them  lays  out 
a  considerable  sum  of  money  in  repairs  and  improvements,  and 
dies ;  this  shall  be  a  lien  on  the  land,  and  a  trust  for  the  repre- 
sentative of  him  who  advanced  it.  (a) 

36.  The  defendant,  Craddock's  father,  the  plaintiff  Lake,  and 
three  others,  five  in  all,  having  entered  into  an  undertaking  to 
drain  the  overflowed  lands  of  West  Thorock,  the  trustees  for 
the  sale,  by  the  consent  and  direction  of  the  commissioners  of 
sewers,  did  by  deed  indented  and  enrolled,  dated  the  8th  Feb- 
ruary, 1695,  in  consideration  of  <£5145  paid  to  the  commissioners 
by  the  five  purchasers,  convey  the  same  to  the  defendant  Crad- 
dock's father,  the  plaintiff  Lake,  the  three  others,  and  their  heirs  ; 
upon  which  several  sums  of  money  were  expended  in  carrying 
on  the  undertaking.  The  plaintiff  Lake  brought  his  bill  against 
the  rest  of  the  partners,  or  their  representatives,  for  an  account 
and  division  of  the  partnership  estate ;  the  only  question  was, 
whether  these  five  purchasers,  having  made  this  purchase  jointly, 
so  as  to  become  in  law  joint  tenants,  the  same  should  survive  in 
equity.     Sir  Joseph  Jekyll  decreed  that  no  survivorship 

372  *     should  take  place ;  for  that  the  payment  of  money  *  cre- 

ated a  trust  for  the  parties  advancing  the  same ;  and  under- 
taking upon  the  hazard  of  profit  or  loss  was  in  the  nature  of 
merchandising,  when  the  jus  accrescendi  was  never  allowed; 
that  supposing  one  of  the  partners  had  laid  out  the  whole 
money,  and  had  happened  to  die  first,  according  to  the  contrary 

(a)  1  Ab.  Eq.  290.    (2  Story,  Eq.  Jur.  §  1206.)    Aveling  v.  Knipe,  19  Ves.  441.    (And  see 
Swan  r.  Swan,  8  Price,  518.) 

reconvey  the  estate,  discharged  from  the  mortgage  debt,  without  the  concurrence  of  the 
personal  representatives  of  the  deceased  trustee.  This  in  effect  makes  the  trustees 
quasi  joint  tenants  of  the  money.] 


Title  XVIII.     Joint  Tenancy.     Ch.  I.  s.  36—39.        839 

construction,  he  must  have  lost  all,  which  would  have  been  most 
unjust.  Wherefore  it  was  decreed  that  these  five  purchasers 
were  tenants  in  common.  Upon  an  appeal,  the  decree  was 
affirmed  by  Lord  King,  (a) 

37.  Lord  Hardwicke  has  assented  to  this  doctrine  ;  and  has 
observed,  that  the  Court  of  Chancery  had  taken  a  latitude  in 
construing  a  tenancy  in  common,  without  the  words  equally  to 
be  divided,  on  the  foot  of  the  intent ;  and  therefore  determined, 
that  if  two  men  jointly  and  equally  advance  a  sum  of  money  on 
a  mortgage,  suppose  in  fee,  and  take  that  security,  to  them  and 
their  heirs,  without  the  words  "  equally  to  be  divided  between 
them,"  there  shall  be  no  survivorship.  So,  if  they  were  to  fore- 
close the  estate,  it  should  be  divided  between  them,  because  their 
intent  was  presumed  to  be  so.  It  had  been  said,  indeed,  that  if 
two  men  made  a  purchase,  they  might  be  understood  to  purchase 
a  kind  of  chance  between  themselves,  which  of  them  should  sur- 
vive ;  but  it  had  been  determined  that  if  two  purchased,  and  one 
advanced  more  of  the  purchase-money  than  the  other,  there 
should  be  no  survivorship,  though  there  were  not  the  words 
"  equally  to  be  divided,"  or  "  to  hold  as  tenants  in  common ; " 
which  showed  how  strongly  the  Court  had  leaned  against  sur- 
vivorship, and  created  a  tenancy  in  common  by  construction,  on 
the  intent  of  the  parties,  (b) 

38.  AW  natural  persons  may  be  joint  tenants;  but  bodies  politic 
or  corporate  cannot  be  joint  tenants  with  each  other.  Nor  can  the 
king,  or  a  corporation,  whether  sole  or  aggregate,  be  joint  tenant 
with  a  natural  person.1 

39.  Thus  Lord  Coke  says,  —  If  lands  be  given  to  two  bishops, 
to  have  and  to  hold  to  them  two,  and  their  successors ;  seeing 
they  take  this  purchase  in  their  political  capacity,  as  bishops, 
they  are  not  joint  tenants ;  because  they  are  seised  in  several 
rights ;  for  the  one  bishop  is  seised,  in  right  of  his  bishopric,  of 
the  one  moiety,  and  the  other  bishop,  in  right  of  his  bishopric, 
of  the  other  moiety ;  and  so  by  several  titles,  and  in 
several  capacities  ;  *  whereas  joint  tenants  ought  to  have     *373 

(a)  Lake  v.  Craddock,  3  P.  Wms.  158. 

(6)  Rigden  v.  Vallier,  2  Ves.  258.  (Randall  v.  Phillips,  3  Mason,  R.  379,  386.  2  Story,  Eq. 
Jur.  §  1206. 

i  [Telfair  v.  Howe,  3  Rich.  Eq.  235.] 


840        Title  XVIII.    Joint  Tenancy.     Ch.  I.  s.  39—45. 

it  in  one  and  the  same  right  and  capacity,  and  by  one  and  the 
same  joint  title,  (a) 

40.  But  if  lands  be  given  to  A.  de  B.,  bishop  of  N.,  and  to  a 
secular  man,  to  have  and  to  hold  to  them  two  and  their  heirs ; 
in  this  case  they  are  joint  tenants,  for  each  of  them  takes  the 
lands  in  his  natural  capacity,  (b) 

41.  This  rule  does  not,  however,  hold  in  the  case  of  chattels 
real ;  for  if  a  lease  for  years  be  made  to  a  bishop  and  a  secular 
man,  they  are  joint  tenants  ;  because,  in  this  case,  the  bishop 
does  not  take  in  his  political  capacity,  (c) 

42.  If  lands  be  given  to  the  king,  and  to  a  subject,  to  have 
and  to  hold  to  them  and  to  their  heirs,  yet  they  are  not  joint 
tenants ;  for  the  king  is  not  seised  in  his  natural  capacity,  but 
in  his  royal  and  political  capacity,  jure  cor  once ;  which  cannot 
stand  in  jointure  with  the  seisin  of  a  subject,  in  his  natural 
capacity,  (d) 

43.  Lord  Coke  also  says,  if  an  alien  and  natural  born  subject 
purchase  lands  in  fee,  they  are  joint  tenants ;  but  the  king,  upon 
office  found,  shall  have  a  moiety,  (e) 

44.  Husband  and  wife  being  considered  in  law  as  one  person, 
if  an  estate  be  conveyed  to  husband  and  wife,  and  to  a  stranger, 
the  husband  and  wife  will  only  take  one  moiety  between  them, 
and  the  stranger  will  take  the  other  moiety.  (/) 

45.  As  there  can  be  no  moieties  between  husband  and  wife 
they  cannot  be  joint  tenants ;  therefore,  where  an  estate  is  con- 
veyed to  a  man  and  his  wife,  and  their  heirs,  it  is  not  a  joint 
tenancy  ;  for  joint  tenants  take  by  moieties,  and  are  each  seised 
of  'an  undivided  moiety  of  the  whole.  But  husband  and  wife 
being  but  one  person,  cannot,  during  the  coverture,  take  separate 
estates  ;  therefore,  upon  a  purchase  made  by  them  both,  each  has 
the  entirety,  and  they  are  seised  per  tout,  not  per  my ;  and  the 
husband  cannot  forfeit  or  alien  the  estate,  because  the  whole  of 
it  belongs  to  his  wife  as  well  as  to  him.1 

(a)  1  Inst.  190,  a.  (b)  Idem. 

(c)  1  Inst.  190,  a.  (d)  Idem.  (e)  1  Inst.  180,  b,  11.  2. 

(/)  Lit.  §  291.     ( Johnson  v.  Hart,  6  Watts  &  Serg.  319.) 


1  Thus,  if  a  promissory  note  or  bond  is  made  to  husband  and  wife,  with  a  mortgage 
to  them  for  collateral  security,  the  debt  and  estate  survive  to  the  wife,  as  joint  tenant ; 
and  this,  as  well  at  law  as  in  equity.     See  Draper  r,  Jacksou,  16  Mass.  480,  where  the 


Title  XVIII.     Joint  Tenancy.    Ch.  I.  s.  46—48.        841 

46.  William  Ocle,  and  Joan  his  wife,  purchased  lands  to  them 
two,  and  their  heirs.  Afterwards  William  Ocle  was  attainted  of 
high  treason,  for  the  murder  of  the  king's  father,  Edward  II., 
and  was  executed;  Joan  his  wife  survived  him.  King  Edward 
III.  granted  the  lands  to  Stephen  de  Bitterby  and  his  heirs. 
John  Hawkins,  the  heir  of  the  said  Joan,  in  a  petition 

*  to  the  king,  disclosed  this  whole  matter ;  and,  upon  a     *  374 
scire  facias  against  the  patentee,  had   judgment  to  re- 
cover the  lands,  (a) 

47.  J.  Andrews  purchased  a  copyhold  estate,  and  took  a  sur- 
render of  it  to  himself,  his  wife,  and  his  daughter,  and  their  heirs. 
J.  Andrews,  being  visible  owner  of  the  estate,  mortgaged  it  to 
the  plaintiff,  and  died.  The  plaintiff  brought  his  bill  against  the 
mother  and  daughter  to  discover  their  title,  and  to  set  aside  their 
estates,  as  fraudulent  against  the  plaintiff,  who  was  a  purchaser. 
The  Court  dismissed  the  bill;  because  the  husband  and  wife 
took  one  moiety  by  entireties,  so  that  the  husband  could  not  alien 
or  dispose  of  it,  to  bind  the  wife,  and  the  other  moiety  was  well 
vested  in  the  daughter,  (b)  f 

48.  A  copyhold  estate  was  surrendered  to  the  use  of  John 
Fitzwalter  and  Elizabeth  his  wife,  and  the  longer  liver  of  them ; 
after  the  death  of  the  longer  liver,  to  the  right  heirs  of  the  said 
John  and  Elizabeth  forever.  Lord  Chief  Justice  De  Grey  said, 
this  case  fell  exactly  within  a  nice  distinction  laid  down  in  our 
ancient  law  books,  and  which,  having  never  been  overruled, 
continued  to  be  law.  The  same  words  of  conveyance,  which 
would  make  two  other  persons  joint  tenants,  would  make  a  hus- 
band and  wife  tenants  of  the  entirety  ;  so  neither  could  sever  the 
jointure,  but  the  whole  must  accrue  to  the  survivor. 

Sir  W.  Blackstone  observed  that  this  estate  differed  from  joint 
tenancy,  because  joint  tenants  took  by  moieties,  and  were  each 
seised  of  an  undivided  moiety  of  the  whole  per  my  et  per  tout ; 
which  drew  after  it   the  incident  of  survivorship,  or  jus   accre- 

{a)  1  Inst.  187,  a.  (&)  Back  v.  Andrews,  2  Vern.  120.    Prec.  in  Cha.  1. 


cases  are  cited  and  reviewed.     Sec  also  Shaw  v.  Hearsey,  5  Mass.  521 ;  Fox  v.  Fletcher, 
8  Mass.  274;  Varnum  v.  Abbot,  12  Mass.  474:  Christ's  Hosp.  v.  Budgin,  2  Vern.  G83  ; 

Coppin  v. ,  2  P.  Wms.  496. 

t  [Vide  Effingham  v.  Carew,  1  And.  39,  and  Dyer,  332,  contra.— This  was  not  a  de- 
cision of  a  court  of  justice,  but  only  an  award.— Note  to  former  Edition] 
VOL.    I.  71 


842  Title  XVIII.     Joint  Tenancy.     Ch.  I.  s.  48—51. 

scendi.  But  husband  and  wife  being  considered  in  law  as  one 
person,  they  could  not,  during  the  coverture,  take  separate  estates  ; 
upon  a  purchase  made  by  them  both,  they  could  not  be  seised  by 
moieties,  but  both  and  each  had  the  entirety.  They  were  seised 
per  tout,  and  not  per  my ;  the  husband,  therefore,  could  not  alien 
or  devise  that  estate,  the  whole  of  which  belonged  to  his  wife, 
as  well  as  to  himself,  (a) 

49.  A  person  devised  a  copyhold  estate  to  John  Freestone  and 

Lucy  his  wife,   and  to  their  heirs  and   assigns   forever. 
375  *     J.  Freestone  *  the  devisee,  was  admitted,  and  surrendered 
to  James  Rickson  in  fee.     Upon  the  death  .of  John  Free- 
stone, Lucy  his  widow,  was  admitted,  and  brought  an  ejectment 
against  the  person  who  claimed  under  her  husband's  surrender. 

Lord  Kenyon  :  —  "  We  are  now  in  a  court  of  law,  and  we  are 
called  upon  to  decide  the  legal  rights  of  the  parties.  It  seems 
to  me,  from  the  manner  in  which  the  case  is  drawn,  to  have 
been  intended  to  be  argued  that  the  devise  in  the  first  will  to  J. 
Freestone  and  Lucy  his  wife,  created  a  joint  tenancy ;  but  that 
question  has  been  properly  abandoned ;  for  though  a  devise  to 
A  and  B,  who  were  strangers  to  and  have  no  connection  with 
each  other,  creates  a  joint  tenancy,  the  conveyance  by  one  of 
whom  severs  the  joint  tenancy,  and  passes  a  moiety  ;  yet  it  has 
been  settled  for  ages  that  when  the  devise  is  to  the  husband  and 
wife,  they  take  by  entireties,  not  by  moieties  ;  and  the  husband 
alone  cannot,  by  his  own  conveyance,  without  joining  his  wife, 
divest  the  estate  of  the  wife.  This  is  sufficient  to  warrant  us, 
sitting  in  a  court  of  law,  in  determining  in  favor  of  the  present 
plsantiff."  (b) 

50.  But  where  an  estate  is  conveyed  to  a  man  and  a  woman 
who  are  not  married,  and  who  afterwards  intermarry ;  as  they 
took  originally  by  moieties,  they  will  continue  to  hold  by  moie- 
ties after  the  marriage,  (c) 

51.  It  was  formerly  held  that  where  lands  were  given  to  two 
women,  and  the  heirs  of  their  tivo  bodies  begotten,  the  husband 
of  one  of  them,  having  issue,  should  be  tenant  by  the  curtesy, 

(ff)Green  v.  King,  2  Black.  Eep.  1211.  Doe  v.  Wilson,  4  Barn.  &  Aid.  303.  (2  Bl.  Comm. 
182.  Shaw  v.  Hearsey,  5  Mass.  521.  Thornton  v.  Thornton,  3  Band.  179.  Jackson  v.  Ste- 
vens, 16  Johns.  110.     Den  v.  Hardenburg,  5  Halst.  42.     4  Kent,  Comm.  362.) 

(b)  Doe  v.  Parratt,  5  Term  E.  652.     Vide  Owen  v.  Morgan,  tit.  36,  c.  10. 

(c)  1  Inst.  1S7,  b.    Moody  v.  Moody,  Ambl.  649. 


Title  XVIII.     Joint  Tenancy.     Ch.  I.  s.  51—57.        843 

living  the  other ;  the  inheritance  being  executed.  But  Lord 
Coke  observes  that  Littleton  has  cleared  up  this  doubt,  by  show- 
ing that  the  inheritance  is  not  executed;  therefore  the  husband 
cannot  be  entitled  to  an  estate  by  the  curtesy,  {a) 

52.  The  widow  of  a  joint  tenant  in  fee  or  in  tail,  is  not  enti- 
tled to  dower ;  because,  upon  the  death  of  her  husband,  the 
estate  goes  to  the  other  joint  tenant ;  who  is  then  in,  from  the 
first  feoffor  or  donor,  and  may  plead  such  feoffment  or  gift  as 
originally  made  to  himself,  without  naming  his  companion,  (b) 

53.  In  consequence  of  the  right  of  survivorship  among  joint 
tenants,  all  charges  made  by  a  joint  tenant  on  the  estate  deter- 
mine by  his  death,  and  do  not  affect  the  survivor;  it  being  a 
maxim  of  law,  that  jus  accrescendi  prcefertur  oneribus. 

*54.  Thus  Littleton  says,  if  there  are  two  joint  tenants  *376 
in  fee,  and  one  of  them  grants  a  rent  charge,  by  deed,  out 
of  that  which  belongs  to  him  ;  in  this  case,  during  the  life  of  the 
grantor,  the  rent  charge  is  effectual ;  but  after  his  decease  it  is 
void ;  for  he  who  hath  the  land  by  survivorship  shall  hold  it 
discharged ;  because  he  is  in  by  survivorship,  and  claims  under 
the  original  feoffment,  not  by  descent  from  his  companion,  (c) 

55.  If  one  joint  tenant  acknowledges  a  recognizance  or  a  stat- 
ute, or  suffers  a  judgment  in  an  action  of  debt  to  be  entered  up 
against  him,  and  dies  before  execution  had,  it  shall  not  be  exe- 
cuted afterwards ;  but  if  execution  be  sued  in  the  life  of  the 
cognizor,  it  shall  then  bind  the  survivor.  But  Lord  Coke  ob- 
serves that  as  well  in  the  case  of  a  rent  charge,  as  of  a  recog- 
nizance, statute  or  judgment,  if  he  who  makes  the  charge  sur- 
vives, it  is  good  forever,  (d) 

56.  If  one  joint  tenant  in  fee  simple  be  indebted  to  the  king, 
and  dies,  no  extent  shall  be  made,  after  his  decease,  upon  the 
land,  in  the  hands  of  the  survivor,  (e) 

57.  There  is  one  exception  to  this  ride ;  for  if  there  are  two 
joint  tenants  in  fee,  and  one  of  them  makes  a  lease  for  years  to 
a  stranger,  it  will  be  good  against  the  survivor ;  even  though 
such  lease  does  not  commence  till  after  the  death  of  the  joint 

(«)  1  List.  30,  a.  183,  a.  (4)  Lit.  §  45.     1  Inst.  37,  b. 

(c)  Lit.  §  286. 

(d)  1  Inst.  184,  a.    Abergavenny's  case,  6  Rep.  78.     Vide  tit.  14,  §  C2. 

(e)  1  Inst.  185,  a. 


844         Title   XVIIL     Joint  Tenancy.    Ch.  I.   s.  57—63. 

tenant  who  made  it ;  because  it  is  an  immediate  disposition  of 
the  land,  (a) 

58.  If  two  persons  are  joint  tenants  for  life,  and  one  grants 
his  moiety  to  J.  S.,  to  have  for  certain  years,  to  commence  after 
the  death  of  his  companion  ;  and  the  other  moiety  to  the  said 
J.  S.  by  the  same  deed,  to  have  from  the  death  of  the  lessor  for 
certain  years,  and  dies  ;  the  survivor  shall  hold  the  land  dis- 
charged of  any  lease,  notwithstanding  this  grant.  For  the  lease 
of  his  own  moiety,  which  he  might  have  leased,  was  not  to 
commence  till  after  the  death  of  his  companion,  and  he  had  not 
any  power  to  lease  the  other  moiety  which  belonged  to  his  com- 
panion ;  so  all  was  void,  (b) 

59.  In  consequence  of  the  intimate  union  of  interest  and  pos- 
session which  exists  between  joint  tenants,  they  are  obliged  to 
join  in  many  acts.  Thus  joint  tenants  must  formerly  have  done 
homage,  and  must  now  do  fealty  together,  (c) 

60.  There  are,  however,  many  cases  where  they  need  not  at 
all  join;  and  where  the  act  of  one  will  be  considered  as 

377  *     the  act  of  *  all.     Thus  the  entry  of  one  joint  tenant  is 
deemed  the  entry  of  all ;  and  the  seisin  and  possession 
acquired  by  such  entry,  is  the  seisin  and  possession  of  them 
all.  (d) 

61.  Every  act  done  by  one  joint  tenant,  for  the  benefit  of  him- 
self and  his  companion,  shall  be  deemed  the  act  of  both.  Thus, 
livery  of  seisin  made  to  one  joint  tenant  will  enure  to  both;  the 
entry  or  reentry  of  one  joint  tenant  is  as  effectual  as  that  of  both. 
So,  where  joint  tenants  make  a  lease,  and  the  lessee  surrenders 
to  one  of  them,  this  will  enure  to  both ;  because  they  have  a 
joint  reversion,  (e) 

62.  If  there  are  two  joint  tenants  for  life  or  years,  and  one  of 
them  commits  waste,  this  is  deemed  waste  by  them  both,  as  to  the 
place  wasted  ;  but  treble  damages  shall  be  recovered  only  against 
the  person  who  actually  committed  the  ivaste.  (f) 

63.  It  has  been  stated  that  in  consequence  of  the  unity  of 
possession  which  exists  between  joint  tenants,  the  possession  of 

(«)  1  Inst.  185,  a.    2  Roll.  Ab.  89.     2  Vern.  323.  (11  East,  288.) 

(b)  Whitlock  v.  Huntwell,  2  Roll.  Ab.  89.  (c)  1  Inst.  67,  b. 

(d)  6  Mod.  44.    Infra.  '  (e)  1  Inst.  49,  b.    Id.  192,  a. 

(/)  2  Inst.  302.     Tit.  3,  c.  2. 


Title  XVIII.    Joint  Tenancy.     Ch.  I.  s.  63—65.        845 

one  is  the  possession  of  the  other ;  f  from  which  it  followed, 
that  a  joint  tenant  could  never  be  disseised  by  his  companion, 
but  by  an  actual  ouster.  So  that  if  one  joint  tenant  levied  a 
fine  of  the  whole  estate,  it  would  not  amount  to  an  ouster  of  his 
companion,  (a) 

64.  At  common  law,  joint  tenants  had  no  remedy  against  each 
other,  where  one  alone  had  received  the  whole  profits  of  the  estate ; 
for  he  could  not  be  charged  as  bailiff  or  receiver  to  his  com- 
panion.1 But  now,  by  the  statute  4  &  5  Ann.  ch.  16,  s.  27,  actions 
of  account  are  maintainable  by  one  joint  tenant,  his  executors 
or  administrators,  against  the  other,  as  bailiff,  for  receiving  more 
than  his  share,  (b)  ~ 

65.  By  the  statute  of  Westm.  2,  ch.  22,  one  Joint  tenant  may 
have  an  action,  by  writ  of  waste,  against  his  companion.  But 
Lord  Coke  observes  that  this  act  does  not  extend  to  castles, 
houses,  or  other  places,  for  habitation  of  man  ;  for  one  joint 
tenant  might,  for  their  reparation,  have  had  a  writ  De  Repara- 
tione  faciendd,  %  at  common  law.  (c)  3 

(a)  1  Salk.  392.    2  Salk.  423.     1  East,  568.     1  Bar.  &  Aid.  85.     (4  Kent,  Comm.  370.) 

(6)  1  Inst.  200,  b.    (Wheeler  v.  Home,  Willes,  208.    Fanning  v.  Chadwick,  3  Pick.  420,  423.) 

(c)  2  Inst.  403. 


[t  The  law  is  now  altered  by  statute  3  &  4  Will.  4,  c.  27,  §  12,  which  enacts  that 
the  possession  of  one  coparcener  joint  tenant,  or  tenant  in  common,  shall  not  be  the 
possession  of  the  others.     Vide  supra,  §  26.] 

[\  These  writs  were  abolished  by  the  statute  3  &  4  Will.  4,  c.  27,  §  36,  after  the  31st 
Dec.  1834.     See,  also,  §  37.] 

1  If  one  joint  tenant  or  tenant  in  common  destroy  the  common  property,  trespass, 
and,  in  some  cases,  trover,  will  lie  for  the  other,  against  the  wrongdoer.  1  Inst.  200; 
2  Saurfd.  47,  h.  by  Williams.  And  see  2  Greenl.  on  Evid.  $  646,  note  8,  where  the 
cases  on  this  subject  are  collected.  If  one  cuts  down  and  sells  the  trees,  the  other 
may  recover  his  part  of  the  proceeds  in  assumpsit.  Miller  v.  Miller,  7  Pick.  133;  9 
Pick.  34. 

2  This  statute  has  been  reenacted  in  some  of  the  United  States,  and  adopted  and  acted 
upon  by  the  courts  in  others,  and  probably  in  all  the  States  in  which  the  action  of 
account  was  used.  And  as  the  proceedings  in  this  form  of  remedy  are  tedious,  and  as 
indebitatus  assumpsit  will  in  general  lie  wherever  account  will  lie,  the  latter  remedy  has 
fallen  into  disuse,  and  assumpsit  is  resorted  to  in  its  stead.  See  1  Leon.  219  ;  12  Mod. 
517;  1  Com.  Dig.  115,  tit.  Accompt,  A.  1  ;  Wilkin  v.  Wilkin,  1  Salk.  9;  Carth.  89, 
S.  C;  Jones  v.  Harraden,  9  Mass.  540,  note  ;  Brigham  v.  Evelcth,  Ibid.  538;  Munroc 
v.  Luke,  1  Met.  459,  464;  Sargent  v.  Parsons,  12  Mass.  152;  4  Kent,  Comm.  369 ; 
Miller  v.  Miller,  7  Pick.  133. 

3  By  the  common  law,  joint  tenants  and  tenants  in  common  were  bound  jointly  to 
maintain  not  only  houses  and  mills,  pro  bono  publico,  they  being  for  the  habitation  and 
use  of  man  ;  1  Inst.  200,  b;  but  also  bridges,  party  walls,  pumps,  wells,  gutters,  sewers, 

71* 


846  Title  XVIII.    Joint  Tenancy.    Ch.  I.  s.  65. 

and  the  like,  owned  and  used  as  their  common  property  and  for  the  common  benefit ; 
Fitzh.N.B.  [127]  295;  Registrum  Brevium,  153,6;  and  this  upon  principles  of  common 
justice  and  equity.  Campbell  v.  Mesier,  4  Johns.  Ch.  R.  334 ;  4  Kent,  Comm.  371  ; 
Story,  Eq.  Jur.  Vol.  I.  §  505  ;  Ibid.  Vol.  II.  §  1235.  The  remedy  was  by  the  writ  De 
reparalione  faciendd,  but  now,  in  this  country,  by  an  action  on  the  case,  or,  if  there  be  a 
special  agreement,  by  an  action  of  assumpsit.  But,  to  support  an  action  on  the  case, 
there  must  have  been  a  previous  request  by  the  plaintiff,  to  the  defendant,  to  join  in 
making  the  necessary  repairs.  See  the  above  authorities ;  and  Loring  v.  Bacon,  4 
Mass.  577;  Doane  v.  Badger,  12  Mass.  65  ;  Mumford  v.  Brown,  6  Cowen,  475;  1  Dane, 
Abr.  719,  720.  See  further,  Percy  v.  Millaudon,  18  Mart.  616  ;  Newton  v.  Newton,  17 
Pick.  201. 

If  the  property  is  destroyed  by  the  negligence  of  one  of  the  owners,  the  others  may 
have  a  joint  remedy  against  him,  by  an  action  on  the  case.  Chesley  v.  Thompson,  3 
N.  Hamp.  R.  9. 

Where  the  parties  are  owners  in  severalty  of  upper  and  lower  rooms  under  the  same 
roof,  if  one  repairs  the  roof  or  foundation,  it  has  been  held  that  the  other  is  not  liable, 
in  an  action  at  law,  to  contribute  to  such  repairs  ;  for  they  are  separate  dwelling-houses, 
and  not  common  property.     Loring  v.  Bacon,  supra. 

In  some  States,  laws  have  been  enacted  for  the  repairs  of  mills,  enabling  the 
majority  of  owners  to  make  repairs,  and  to  reimburse  themselves  out  of  the  tolls  and 
profits.  Where  this  provision  exists,  it  has  been  adjudged  that  the  common-law  remedy 
is  superseded.  Carver  r.  Miller,  4  Mass.  359.  See  Maine,  Rev.  St.  1840,  ch.  86,  §  4  ; 
Mass.  St.  1795,  ch.  74,  §  6  ;  Rev.  St.  ch.  116,  $  49,  50 ;  Michigan,  Rev.  St.  1837,  p.  534, 
§  2.  In  New  Hampshire,  the  repairs  are  ordered  and  the  expenses  ascertained  and  cer- 
tified by  the  selectmen  of  the  town,  on  petition  of  any  owner  ;  and  an  action  is  given  to 
recover  the  amount  from  the  party  receiving  the  benefit.  N.  Hamp.  Rev.  St.  1842,  ch. 
135,  §  1 — 7.  [See  Buck  v.  Spofford,  31  Maine,  (1  Red.)  34.  Joint  tenants  and  ten- 
ants in  common  have  now  an  action  of  waste,  as  well  as  an  account  for  the  profits. 
Shiels  v.  Stark,  14  Geo.  429.] 


847 


CHAP.  II. 

HOW   A   JOINT   TENANCY   MAY   BE  SEVERED   AND   DESTROYED. 


Sect.     2.  Destruction  of  the  Unity  of 
Interest. 
S.    Of  tie  Unity  of  Title. 
9.  Of  the  Unity  of  Possession. 
10.  By  Alienation  to  a  Stranger. 

19.  Exception, — Devise. 

20.  By  an  Agreement  to  alien. 
22.  By    the    Alienation  of  one 

Joint  Tenant  to  another. 


Sect.  29.  By  voluntary  Partition. 
30.  By  Writ  of  Partition. 
38.  By  Partition  in  Chancery. 
41.  By  an  Agreement  to   make 

Partition. 
46.  By  devolving  to  one  Person. 


Section  1.  An  estate  in  joint  tenancy  may  be  severed  and 
destroyed  by  the  destruction  of  any  of  its  constituent  unities, 
except  that  of  time  ;  which,  as  it  respects  only  the  original  com- 
mencement of  the  estate,  cannot  be  affected  by  any  subsequent 
transaction. 

2.  An  estate  in  joint  tenancy  is  destroyed  by  the  destruction  of 
the  unity  of  interest,  which  may  be  done  either  by  the  act  of  the 
parties,  or  by  the  operation  of  law. 

3.  Thus  Lord  Coke  says, — If  a  man  makes  a  lease  to  two  for 
their  lives,  and  after  grants  the  reversion  to  one  of  them  in  fee, 
the  jointure  is  severed,  and  the  reversion  is  executed  for  the  one 
moiety  ;  and  for  the  other  moiety  there  is  tenant  for  life,  the  re- 
version to  the  grantee,  (a) 

4.  A,  tenant  for  life,  remainder  to  B  and  three  others  for  life, 
the  reversion  to  C  and  his  heirs  expectant.  C  levied  a  fine  to 
A  and  B,  to  the  use  of  A  for  life  ;  after  his  death,  to  the  use  of 
B  in  fee  ;  A  died,  and  afterwards  B  died.  The  question  was, 
whether  the  jointure  was  severed  or  not.  It  was  resolved  that 
the  jointure  was  severed,  and  this  difference  taken ;  when  the 
fee  is  limited  by  one  and  the  same  conveyance,  there  one  person 
may  have  a  fee  simple,  and  the  other  an  estate  for  life  jointly; 


(a)  1  Inst.  182,  b. 


848  Title  XVIII.    Joint  Tenancy.     Ch.  II.  s.   4—8. 

but  when  they  are  first  tenants  for  life,  and  afterwards 
379*     one  of  them  acquires  the  fee  simple,  there  the  *  jointure 

is  severed.  As  if  a  man  makes  an  estate  to  three,  and 
to  the  heirs  of  one  of  them,  there  one  of  them  hath  fee  simple, 
yet  the  jointure  continues  ;  for  all  is  but  one  entire  estate, 
created  at  One  and  the  same  time ;  therefore  the  fee  simple  can- 
not merge  the  jointure,  which  took  effect  with  the  creation  of 
the  remainder  in  fee.  But  when  three  are  joint  tenants  for  life, 
and  afterwards  one  purchases  the  fee,  there  the  fee  simple  merges 
the  estate  for  life ;  for  the  estate  for  life  was  in  esse  before,  and 
might  be  merged  or  surrendered,  and  so  cannot  the  estate  for 
life  in  the  first  case.  In  the  same  case,  that  is  to  say,  when  an 
estate  is  made  to  three,  and  to  the  heirs  of  one  of  them,  and  he 
who  hath,  the  fee  dies,  and  one  of  the  survivors  purchases  the  re- 
mainder, the  jointure  is  severed,  causd  qud  supra.  And  when 
one  tenant  for  life  purchases  the  reversion  in  fee,  if  the  jointure 
should  remain,  he  would  have  a  reversion  in  fee,  and  an  estate 
for  life  also  in  part ;  which  reversion  in  fee  he  might  grant  over, 
and  his  estate  for  life  would  remain  in  part ;  which  would  be  ab- 
surd, and  against  reason  ;  for,  in  the  first  case,  when  an  estate  is 
made  to  three,  and  to  the  heirs  of  one,  he  who  hath  the  fee  can- 
not grant  over  his  remainder,  and  continue  in  himself,  an  estate 
for  life,  (a) 

5.  So,  if  a  lease  be  made  to  two  men  for  term  of  their  lives, 
and  after,  the  lessor  grants  the  reversion  to  them  two,  and  to  the 
heirs  of  their  two  bodies,  the  jointure  is  severed,  (b) 

6.  "Where  the  reversion  in  fee  descends  to  one  of  the  persons 
who  is  joint  tenant  for  life,  the  joint  tenancy  will  thereby  be 
severed. 

7.  A  man,  having  issue  three  sons,  devised  lands  to  his  two 
youngest  sons  jointly  for  their  lives.  Afterwards,  the  eldest  son, 
who  had  the  reversion  in  fee,  died,  by  which  it  descended  to  the 
second  son.  This  was  held  to  be  a  severance  and  destruction  of 
the  jointure,  by  operation  of  law.  (c) 

8.  An  estate  in  joint  tenancy  may  also  be  destroyed  by  the 
destruction  of  the  unity  of  title.  Thus,  if  one  of  the  joint  tenants 
conveys  his  share  to  a  stranger,  it  is  a  severance  of  the  joint 
tenancy ;   for  the  grantee  and   the  remaining   tenant   hold   by 

(a)  Wiscot's  case,  2  Eep.  60.    Ante,  c.  1.  (6)  1  Inst.  182,  b.  (c)  2  And.  202. 


Title  XVIII.     Joint  Tenancy.     Ch.  II.  s.  S— 15.        849 

several  titles ;  the  alienee  coming  into  one  moiety  by  the  convey- 
ance of  one  of  the  joint  tenants,  and  the  other  joint  tenant  hold- 
ing the  other  moiety  by  the  first  feoffment,  (a) 

9.  Another  mode  of  destroying  an  estate  in  joint  ten- 
ancy is,  *  by  disuniting  the  possession;  for  joint  tenants     *380 
being  seised  per  my  et  per  tout,  every  thing  that  tends  to 
narrow  that  interest,  so  that  each  of  them  ceases  to  be  seised  df 
the  whole  and  of  every  part,  is  a   severance  and  destruction  of 
this  estate. 

10.  Thus,  it  has  been  stated,  that  an  alienation  by  one  joint 
tenant  to  a  stranger  severs  the  joint  tenancy,  by  destroying  the 
unity  of  title.  It  also  severs  it,  by  destroying  the  unity  of  pos- 
session ;  for  the  alienee  and  the  remaining  tenant  have  several 
freeholds.  (b) 

11.  Littleton  says,  if  there  be  two  joint  tenants  in  fee,  and  one 
of  them  makes  a  lease  for  life  to  a  stranger,  the  joint  tenancy  is 
severed.  Lord  Coke  observes  that,  in  this  case,  there  is  also  a 
severance  of  the  reversion.  And  it  has  been  stated  that  a  lease 
for  years  made  by  one  joint  tenant  will  bind  his  companion,  so 
that  it  operates  as  a  severance  pro  tanto.  (c) 

12.  So,  if  two  be  joint  tenants  of  a  lease  for  twenty-one  years, 
and  the  one  of  them  lets  his  part  for  certain  years,  part  of  the 
term,  the  jointure  is  severed,  and  the  survivorship  destroyed; 
because  a  term  for  a  small  number  of  years  is  as  high  an  interest 
as  for  many  more  years.  (cT) 

13.  A  mortgage  by  a  joint  tenant,  for  a  term  of  years,  will 
operate  as  a  severance  of  the  joint  tenancy. 

14.  Three  persons  being  joint  tenants  of  the  trust  of  a  term 
for  years,  one  of  them  mortgaged  his  third  part.  The  question 
was,  whether  the  joint  tenancy  was  severed.  Lord  Cowper  held 
that  it  was  a  severance  ;  for,  in  the  case  of  a  joint  tenancy,  which 
was  a  thing  odious  in  equity,  it  would  be  a  disadvantage  to  the 
mortgagor  not  to  have  it  construed  a  severance,  (e) 

15.  Alienations  of  this  kind  must,  however,  be  valid  and  good 
in  law,  to  have  this  effect ;  for  a  conveyance  by  a  joint  tenant  to 
his  wife,  being  void  at  law,  will  not  operate  as  a  severance  of  a 
joint  tenancy.  (/) 

(a)  Lit.  §  292.    (Denne  v.  Judge,  11  East,  288.)  (6)  Ante,  §  8. 

(c)  Lit.  §  302.     Ante,  c.  1,  §  57.  (d)  1  Inst.  192,  a. 

(e)  York  v.  Stone,  1  Ab.  Eq.  293.    1  Salk.  158.  (Simpson  v.  Amnions,  1  Binn.  175.) 
(/)  Tit.  32,  c.  2. 


850       Title  XVIII.    Joint  Tenancy.     Ch.  II.  s.  16—18. 

16.  A  joint  tenant  of  a  church  lease,  being  taken  ill  on.  a 
journey,  and  wishing  to  sever  the  joint  tenancy,  that  he  might 
provide  for  his  wife,  sent  for  the  schoolmaster  of  the  town,  and 
directed  him  to  prepare  an  instrument  for  that  purpose.  The 
schoolmaster  drew  a  kind  of  deed  of  gift  of  the  lease  from  the 
sick  man  to  his  wife,  which  he  executed,  and  died.     The  deed 

being  void  in  law,  the  widow  endeavored  to  establish  it 
381*     in  *  equity  ;  but  her  bill  was  dismissed,  it  being  voluntary, 
and  without  consideration,  (a) 

17.  Articles  of  agreement  by  an  infant,  though  made  in  con- 
sideration of  marriage,  will  not  operate  as  a  severance  of  a  joint 
tenancy. 

18.  Ann  May,  previous  to  her  marriage,  being  then  an  infant, 
and  possessed  of  a  considerable  leasehold  estate,  held  in  joint 
tenancy  with  her  two  sisters,  by  articles  of  agreement  made  be- 
tween her,  of  the  first  part,  John  Hook,  her  intended  husband,  of 
the  second  part,  and  trustees  of  the  third  part,  covenanted  and 
agreed  that  the  leasehold  estates  should  be  assigned  to  John 
Hook  for  his  own  use  and  benefit.  The  marriage  took  effect. 
Ann  May  died  under  age.  The  question  was,  whether  these 
articles  were,  in  equity,  a  severance  of  the  joint  tenancy. 

Lord  Bathurst  said,  the  first  point  attempted  to  be  established 
was,  that  had  Ann  May  been  of  full  age  when  she  entered  into 
the  articles,  they  would  have  amounted  to  a  severance  ;  but  no 
determination  to  that  effect  had  ever  been  made.  The  co- 
joint  tenants  were  not  in  this  case  to  be  considered  as  volun- 
teers, as  they  claimed  by  a  title  paramount ;  and  their  situation 
approached  nearer  to  that  of  issue  in  tail,  who  claimed  per  for  mam 
doni,  than  to  that  of  an  heir  at  law,  who  claims  only  under  his 
ancestor.  The  utmost  which  the  infant  could  do  would  be 
an  avoidable  act ;  and  of  course  it  would  be  in  the  discretion  of 
the  Court,  either  to  give  or  refuse  their  assistance  to  it.  By  a 
parity  of  reason,  it  must  always  be  in  their  power  to  model 
such  contracts  at  their  pleasure.  The  contract  in  the  present 
case  was  not  such  as  the  Court  would  uphold.  Had  the  infant 
lived  to  come  of  age,  and  a  bill  been  filed  against  her  for  the  per- 
formance of  the  articles,  the  Court  would  have  set  them  aside, 
and  referred  it  to  a  Master  to  draw  new  proposals  for  a  proper 

(a)  Moyse  v.  Giles,  Prec.  in  Cha.  124. 


Title  XVIII.    Joint  Tenancy.     Ch.  II.  s.  18—22.      851 

settlement.  As  the  contract  was  not  such  as  would  have  bound 
the  infant  herself,  a  fortiori,  it  should  not  bind  the  co-joint 
tenants.  It  would  be  a  strange  doctrine,  that  any  act  of  an 
infant,  which  is  by  its  nature  avoidable,  should  sever  the  joint 
tenancy ;  as,  if  that  were  allowed,  it  would  always  be  in  the 
power  of  the  infant  to  say  whether  the  joint  tenancy  should  be 
severed  or  not.  Then,  if  any  of  the  co-joint  tenants  should  die 
under  age,  the  infant  might  avoid  his  own  act,  by  pleading  infra 
cetatem,  and  resort  to  his  title  by  survivorship ;  which 
would  be  *a  great  injustice  and  hardship  on  the  co-joint  *382 
tenants.  On  these  grounds  he  was  of  opinion  that  the 
articles  did  not  amount,  in  equity,  to  a  severance  of  the  joint 
tenancy,  (a) 

19.  Regularly,  every  disposition  by  one  joint  tenant,  in  order 
to  bind  his  companion,  must  be  an  immediate  one ;  for  the  other 
joint  tenant  claiming  the  whole,  under  the  original  feoffment  or 
grant,  the  whole  must  descend  to  him,  unless  his  companion  has 
disposed  of  his  share  in  his  lifetime.  From  which  it  follows 
that  a  devise  can  in  no  case  operate  as  a  severance  of  a  joint 
tenancy;  it  being  a  maxim  of  law,  thsAjns  accrescendi  prmfertur 
ultimcs  voluntati.  (b) 

20.  It  is  said,  that  if  a  joint  tenant  agrees  to  alien,  and  does 
it  not,  but  dies,  it  would  be  a  strange  decree  to  compel  the  sur- 
vivor to  perform  the  agreement.  Lord  Hardwicke,  observing  on 
this  passage,  says  — "  If  the  articles  were  such  as  amounted  to  a 
severance  in  equity,  in  such  case  this  Court  would  decree  against 
the  survivor."  (c) 

21.  In  case  of  May  v.  Hook,  Lord  Bathurst  appears  to  have 
been  of  opinion  that  this  point  had  never  been  decided ;  but,  in 
a  modern  case,  Lord  Alvanley,  M.  R.,  said  —  "A  covenant  by  a 
joint  tenant  to  sell,  though  it  does  not  sever  the  joint  tenancy  at 
law,  will  in  equity.  I  have  always  understood  this  as  a  settled 
point,  and  have  no  difficulty  upon  it."  (d) 

22.  An  estate  in  joint  tenancy  may  also  be  destroyed  by  the 
alienation  of  one  joint  tenant  to  another.  And  the  proper  con- 
veyance in  this  case  is  by  release ;  for  one  joint  tenant  cannot 

(a)  May  v.  Hook,  1  Inst.  246,  a.  a.  1.     1  Bro.  C.  C.  112.     Infra,  §  20. 

(b)  (Duncan  v.  Forrer,  G  Binn.  193.) 

(c)  2  Vern.  63.    2  Yes.  634.    (Brown  v.  Eaindle,  3  Ves.  257.) 

(d)  Ante,  §  18.    3  Ves.  257.    (5  Binn.  126.) 


852         Title  XVIII.    Joint  Tenancy.     Ch.  II.  s.  22—26. 

enfeoff  his  companion,  because  they  are  both  actually  seised  of 
the  whole  estate.1 

23.  Thus,  if  there  be  two  joint  tenants  in  fee,  and  one  of  them 
releases  to  the  other,  this  will  destroy  the  joint  tenancy,  and  vest 
the  whole  estate  in  the  releasee,  who  will  then  hold  in  severalty ; 
and  the  releasee  shall,  for  many  purposes,  be  adjudged  in  from 
the  first  feoffor,  (a) 

24.  If  there  are  three  joint  tenants,  and  one  of  them  releases 
by  deed  to  one  of  his  companions  all  the  right  which  he  hath  in 
the  land,  the  releasee  has  a  third  part  of  the  land  with  himself 
and  his  companion  in  common ;  and  he  and  his  companion  shall 

hold  the  remaining  two  parts  in  joint  tenancy. f  But  if 
383*     one  *  joint  tenant  releases  to  all  the  others,  they  are  in 

from  the  first  feoffor  or  grantor,  and  not  from  him  who 
released ;  and  they  continue  to  hold  in  joint  tenancy,  (b) 

25.  If  one  joint  tenant  grants  a  rent  out  of  his  part,  afterwards 
releases  to  his  companion,  and  dies,  the  companion  shall  hold 
the  land  charged  with  this  rent,  because  he  comes  to  the  estate 
by  his  own  act,  namely,  by  acceptance  of  the  release,  not  by 
survivorship,  (c) 

26.  Thus,  where  two  persons  were  joint  tenants  in  fee,  and 
one  granted  a  rent-charge  in  fee,  and  afterwards  released  to  the 
other ;  it  was  resolved  that  although,  to  some  intents,  he  to 
whom  the  release  was  made,  was  in  by  the  first  feoffor  and  no 
degree  was  made  between  them ;  yet,  as  to  the  grantee  of  the 
rent-charge,  he  was  in  under  the  first  joint  tenant  who  released  • 
and  by  acceptance  of  the  release,  he  had  deprived  himself  of  the 
ways  and  means  to  avoid  the  charge ;  for  the  right  of  survivor- 
ship was  the  sole  means  to  have  avoided  it,  and  that  right  was 
utterly  taken  away  by  the  release,  (d) 

(a)  1  Inst.  273,  b.  (J)  Lit.  §  30-1.     Bro.  Ab.  Joint  Tenant,  pi.  2. 

((.■)  1  Inst.  185,  a.  (d)  Abergavenny's  case,  6  Rep.  78,  b. 


1  If  the  estate  of  one  joint  tenant  be  taken  in  execution  for  his  debt,  and  sold,  or  set 
off  by  extent,  this  is  a  severance  of  the  joint  tenancy.  Remmington  v.  Cady,  10  Conn. 
R.  44.  [In  a  release  between  joint  tenants  or  coparceners,  a  fee  will  pass  without 
words  of  limitation.  But  conveyances  between  tenants  in  common  cannot  operate  by 
way  of  release,  and  must  contain  the  word  "  heirs,"  to  pass  a  fee.  Rector  v.  Waugh, 
17  Mis.  (2  Bennett,)  13.] 

t  [So  where  one  of  three  or  more  joint  tenants  conveys  his  share  to  a  stranger,  it  is 
a  severance  only  as  to  his  share ;  the  remaining  shares  continue  to  be  held  in  joint 
tenancy,  and  consequently  subject  to  survivorship  among  the  remaining  joint  tenants. 
Co.  Lit.  304 ;  Gale  v.  Gale,  2  Cox,  Ca.  156  ;  Denne  v.  Judge,  1 1  East,  288.] 


Title  XVIII.     Joint  Tenancy.     Ch.  II.  s.  27—28.         853 

27.  Three  persons  being  joint  tenants  for  life,  one  of  them 
sealed  and  delivered  a  deed  to  another,  in  which  it  was  expressed 
that  he  granted,  bargained,  sold,  assigned,  set  over,  and  confirmed 
to  the  other,  all  the  right,  estate,  title,  interest,  claim,  and  de- 
mand of  the  grantor,  of  and  to  the  lands  holden,  in  jointure. 
The  question  was,  whether  this  deed  was  sufficient  to  pass  the 
part  or  share  of  the  joint  tenant  who  made  the  deed,  to  the 
other  to  whom  the  deed  was  made,  or  not.  It  was  adjudged 
clearly,  without  argument,  that  it  was.  And  it  was  said  by  the 
Chief  Justice,  that  though  the  jury  had  found  that  he  granted, 
yet  the  Court  would  adjudge  that  he  released;  which  was  the 
proper  conveyance  for  one  joint  tenant  to  pass  his  estate  to  the 
other,  (a) 

28.  John  Stile  and  Susan,  a  feme  sole,  were  joint  tenants  for 
life.  Susan  took  husband,  who  by  fine  granted  to  Stile,  tene- 
menta  prcedicta  et  totum  et  quicquid  habent  pro  termino  vitce  of 
the  said  Susan ;  et  ilia  ei  reddidit,  habendum  to  him  and  his 
assigns,  for  the  life  of  the  said  Susan ;  and  warranted  it  to  him 
and  his  heirs,  during  the  life  of  the  said  Susan.  The 
question  *  was,  whether  this  fine  should  enure  by  way  of  *  384 
release,  or  by  grant  of  the  estate,  and  severance  of  the 
jointure  of  the  moiety,  so  that  this  estate  should  enure  during 
the  life  of  Susan.  It  was  resolved  that  it  should  enure  by  way 
of  release,  and  not  by  way  of  grant ;  and  although  it  was  granted 
by  fine,  it  as  well  enured  by  way  of  release,  as  a  grant  by 
deed  ;  and  the  rather  for  the  words  ei  reddidit,  which  enured  by 
way  of  release  :  and  both  estates  being  vested  in  him,  the  law 
should  vest  that  in  him,  as  if  he  had  it  from  the  feoffor.  And 
although  it  was  objected  that  he  had  one  estate  from  the  feoffor 
by  deed,  and  the  other  estate  by  the  fine,  so  being  by  matter  of 
record,  he  could  not  divide  it,  yet  it  was  said  that  both  estates 
being  vested  in  him,  the  law  should  adjudge  it  in  him,  as  by  the 
first  limitation. 

Doderidge  held,  that  by  whatever  means  he  came  to  the  estate 
of  his  companion,  it  should  enure  by  way  of  release ;  that  he 
should  be  said  in  of  the  entire  estate,  as  by  the  feoffment. 
Therefore,  if  one  joint  tenant  bargained  and  sold  by  deed 
enrolled  to  his  companion,  it  should  enure  by  way  of  release,  and 

(a)  Chester  v.  Willan,  2  Saund.  96. 

vol.  i.  72 


854         Title  XVIII.     Joint  Tenancy.     Ch.  II.  s.  28—32. 

that  he  should  be  said  in  of  the  entire  estate,  as  by  the  feoff- 
ment. And  if  one  joint  tenant  bargained  and  sold  by  deed 
enrolled  to  his  companion,  although  that  vested  the  use,  and 
the  statute  vested  the  possession ;  yet,  being  in  him,  the  law 
should  construe  it  to  be  entirely  in  him,  and  by  division  of  es- 
tate, (a) 

29.  Joint  tenants  may  destroy  their  estate  by  a  voluntary 
partition  among  themselves.  But  such  partitions  must,  at  all 
times,  have  been  made  by  deed;  except  where  the  estate  was 
only  for  years,  for  there  they  might  make  partition  without 
deed,  (b) 

30.  By  the  common  law,  one  joint  tenant  could  not  compel  the 
other  to  make  partition,  except  by  the  custom  of  some  particular 
boroughs.  But  by  the  statute  31  Hen.  VIII.  c.  1,  reciting  the 
inconveniences  which  joint  tenants  lay  under,  it  is  enacted  that 
all  joint  tenants  of  any  estate  or  estates  of  their  own  inheritance, 
in  their  rights,  or  in  right  of  their  wives,  in  any  manors,  &c. 
shall  and  may  be  coacted  and  compelled  to  make  partition  be- 
tween them  of  all  such  manors,  &c.  as  they  hold  as  joint  tenants, 
by  writ  De  Partitione  faciendd,  in  that  case  to  be  devised  in 
Chancery.(c) ] 

31.  As  this  statute  only  extended  to  joint  tenants  hav- 
385*     ing  an  *  estate  of  inheritance,  an  act  was  made,  32  Hen. 
VIII.  c.  32,  by  which  joint  tenants  for  life  or  years  are 
enabled  to  make  partition  of  their  estates. 

32.  In  this  action  there  are  tivo  judgments  :  the  first,  Quod 
partitio  fiat  inter  partes  prcedictas,  de  tenementis,  cum  pertinentiis. 
And  upon  this  there  goes  out  a  judicial  writ  to  the  sheriff,  to 
make  partition ;  which  recites,  first,  the  writ  of  partition  and 
judgment,  and  then  commands  the  sheriff,  together  with  twelve 
men  of  the  vicinage,  &c.  to  go  in  person  to  the  lands  to  be 
divided,  and  there,  in  presence  of  the  parties,  (if  they  appear  on 
summons  to  be  made,)  by  the  oaths  of  those  twelve  men,  to 
make  an  equal  and  fair  partition,  and  allot  to  each  party  their 

(a)  Eustace  v.  Scawen,  Cro.  Jac.  696.     Tit.  35,  c,  12.     Tit.  32,  c.  9. 

(b)  Lit.  §  290.     1  Inst.  169,  a.  187. 

(c)  1  Inst.  169,  a. 


1  As  to  the  mode  of  making  partition  in  the  United  States,  see  post,  tit.  20,  §  38, 
note.     See  also,  4  Kent,  Comm.  364—366. 


Title  XVIII.     Joint   Tenancy.     Ch.  II.  s.  32—37.      855 

full  and  just  share,  and  then  return  the  inquisition  of  the  parti- 
tion annexed  to  the  writ,  under  the  seals  of  the  sheriff  and  the 
jurors ;  whose  names  are  likewise  to  be  returned,  (a) 

33.  When  the  inquisition  is  thus  returned,  on  motion  made 
to  the  Court,  the  second  judgment  is  given  in  this  manner : — 
Ideo  consideratum  est  per  Curiam,  quod  parti/ io  finna  ct  stabilis 
in  perpetuum  teneatur.  (b) 

34.  In  a  writ  of  partition,  if  the  judgment  be  given  quod 
partitio  fiat,  and  thereupon  a  writ  is  directed  to  the  sheriff  to 
make  partition,  no  writ  of  error  lies ;  because  the  judgment  is 
not  complete  till  the  sheriff's  return  and  the  second  judgment 
which  the  law  requires ;  for,  before  that,  the  plaintiff  may  be 
nonsuited.  Or  he  may,  upon  the  return  of  the  sheriff,  suggest  to 
the  Court  that  the  partition  is  not  equal,  and  so,  have  a  new  par- 
tition ;  and  may  also  release  before  the  last  judgment,  (c) 

35.  If,  after  awarding  the  judicial  writ,  and  before  the  return 
of  it,  the  defendant  dies  ;  yet  the  partition  is  good,  and  the  writ 
shall  not  abate ;  because,  before  the  death  of  the  defendant, 
judgment  ought  to  be  given  that  partition  should  be  made  ;  and 
though,  upon  the  return  of  the  judicial  writ,  there  is  another 
judgment  given,  yet  that  is  in  confirmation  of  the  first  judgment. 
It  seems,  likewise,  that  upon  the  return  of  the  judicial  writ,  no 
exception  can  be  taken  to  it ;  therefore  it  is  not  material  whether 
the  defendant  be  dead  or  alive  then,  since  he  can  have  no  advan- 
tage by  any  plea  on  the  return  of  the  writ,  (d) 

*  36.  If  the  writ  be  brought  by  one  joint  tenant  against  *  386 
several,  and  there  happen  to  be  error  in  the  execution 
of  it,  and  one  of  the  defendants  releases  all  errors  to  the 
plaintiff,  this  shall  not  bar  the  others  ;  for  each  having  a 
distinct  interest,  shall  not  be  prejudiced  by  the  release  of  his 
companion,  (e) 

37.  In  this  writ  of  partition  may  be  demanded  the  view  of 
frankpledge,  together  with  a  manor ;  for  though  it  be  not  sever- 
able of  itself,  nor  partible,  yet  the  profits  thereof  maybe  divided: 
or  it  may  be  divided  thus ;  that  the  one  shall  have  it  at  one  time, 
and  the  other  at  another ;  also,  being  demanded  within  the  manor, 

(a)  Booth's  Real  Act.  244.     Lit.  $  248.  (4)  1  Inst.  1C9,  a. 

(c)  Berkeley  v.  Warwick,  Cro.  Eliz.  G35.  (c?)  Cro.  Eliz.  636.     Dal.  59. 

(e)  Yate  v.  Windham,  Cro.  Eliz.  G4. 


856        Title  XVIII.     Joint  Tenancy.     Ch.  II-  s.  37—40. 

it  may  be  well  entirely  allotted  to  one,  and  the  land  in  recom- 
pense to  another,  (a) l 

388  *         *  38.  The  courts   of  common  law  [of  late  years  have 

been]  seldom  resorted  to  for  obtaining  partitions  of  estates 
held  in  joint  tenancy.  For  the  Court  of  Chancery,  ever  since 
the  reign  of  Queen  Elizabeth,  has  entertained  suits  for  partition; 
upon  the  ground,  that  if  the  titles  of  the  parties  are  in  any  de- 
gree complicated,  it  is  extremely  difficult  to  proceed  in  the  courts 

of  law  ;  and  where  the  tenants  in  possession  are  seised  of 

389  *     particular  *  estates  only,  the  persons  in  remainder  are  not 

bound  by  the  judgment,  (b)  2 

39.  A  joint  tenant  may  therefore  now  file  a  bill  in  the  Court 
of  Chancery,  praying  for  a  partition  of  the  estate  ;  in  which  case 
the  Court  will  issue  a  commission  to  certain  persons  for  that 
purpose,  who  may  proceed  to  divide  the  estate  without  a  jury, 
and  make  their  return  to  the  Court.  If  not  objected  to  by  any 
of  the  parties,  the  Court  will  decree  the  performance  of  such 
partition,  and  direct  the  parties  to  execute  proper  conveyances  to 
each  other  of  the  shares  allotted  to  them,  (c) 

40.  Lord  Hardwicke  has  said,  that  where  a  bill  is  brought  in 
the  Court  of  Chancery,  to  have  a  partition  between  two  joint 
tenants,  or  tenants  in  common,  the  plaintiff  must  show  a  title  to 
himself  in  a  moiety,  and  not  allege  generally  that  he  is  in  pos- 
session of  a  moiety  ;  and  this  is  stricter  than  a  partition  at  law, 
where  seisin  is  sufficient.  The  reason  is,  because  in  Chancery 
conveyances  are  directed,  and  not  a  partition  only  ;  which  makes 
it  discretionary,  whether  where  a  plaintiff  has  a  legal  title,  they 
will  grant  a  partition  or  not ;  and  where  there  are  suspicious 
circumstances  in  the  plaintiff's  title,  the  Court  will  leave  him  to 
law.  (d)3 

(a)  Moor  v.  Onslow,  Cro.  Eliz.  759. 

(b)  Mitford's  Plead.  397.  1  Inst.  169,  a,  n.  2  Ves.  jim.  124.  17  Ves.  552.  1  V.  &  Bea. 
553,  et  seq.    (Castleman  v.  Veitch.  3  Rand.  508.) 

(c)  Amb.  R.  236, 589.     Calmady  v.  Calmady,  2  Ves.  jun.  568.    17  Ves.  533. 

(d)  Cartwright  v.  Pulteney,  2  Atk.  380. 

1  Writs  of  partition  were  abolished  in  England,  by  statute  3  &  4  Will.  4,  ch.  27. 
But  in  the  United  States  this  remedy  is  still  in  force.     See;;os^,  tit.  19,  §  20,  &c. 

f  On  the  jurisdiction  of  Courts  of  Chancery,  in  cases  of  partition,  and  the  principles 
and  manner  of  its  exercise,  see  I  Story  on  Eq.  Jar.  ch.  14,  §  646 — 658  ;  Allnatt  on 
Partition,  ch.  4. 

3  If   the  legal  title  is  clear   and  without  suspicion,   the   remedy  for    partition    in 


Title  XVIII.    Joint  Tenancy.     Ch.  II.  s.  41—45.       857 

41.  Sir  W.  Blackstone  says,  if  two  joint  tenants  agree  to  part 
their  lands,  and  hold  them  in  severalty,  they  are  no  longer  joint 
tenants  in  equity  ;  for  they  have  no  joint  interest  in  the  whole, 
but  only  a  several  interest  respectively  in  the  several  parts.  And 
for  that  reason  also  the  right  of  survivorship  is,  by  such  separa- 
tion, destroyed,  (a) 

42.  In  a  modern  case,  in  which  the  question  was,  whether 
persons  taking  a  residue  as  executors,  took  as  joint  tenants; 
Lord  Thurlow  said :  "  If  in  fact  they  were  joint  tenants, — could 
their  having  joined  in  an  answer,  that  it  was  a  tenancy  in  com- 
mon, have  the  operation  of  a  severance  ?  A  note  certainly 
would  do  it,  because  a  joint  tenancy  may  be  severed  by  any 
contract ;  and  if  they  said  in  their  answer  that  they  agreed  so  to 
do,  I  should  construe  them  to  have  done  a  sufficient  act  to 
sever."  (b) 

43.  It  should,  however,  be  observed  that  an  agreement  of  this 
kind  must  be  in  writing,  and  would  only  operate  in  equity ;  and 
that  the  legal  estate  would  still  be  held  in  joint  tenancy. 

44.  An  agreement  by  the  husbands  of  two  joint  ten- 
ants to  *  make  partition,  with  a  partition  made  under  such     *  390 
an  agreement,  will  not  bind  the  inheritance  of  the  wives. 

45.  Mary  and  Susan  Jackson  being  joint  tenants  in  fee  of 
certain  copyhold  lands,  and  being  both  married,  the  husbands, 
by  mutual  agreement,  made  a  partition  of  the  premises  between 
themselves  and  the  heirs  of  Mary  and  Susan,  by  which  each  of 
them  agreed  to  take  one  part  thereof,  which  each  of  them  did, 
and  entered  into  possession.  Susan  held  a  share  of  the  premises 
so  divided  by  virtue  of  such  partition,  and  Mary  enjoyed  her 
part  till  her  death  ;  and  Mary's  share  being  at  the  time  of  the 
partition  somewhat  larger  than  Susan's,  in  consideration  thereof 
Mary  paid  the  taxes  charged  upon  both.  A  bill  was  brought  by 
the  heir  of  Mary  to  confirm'  the  division,  and  that  the  defendant 
Susan  might  be  restrained  from  proceeding  at  law  against  the 
plaintiff,  to  compel  a  new  partition  thereof.  Lord  Hardwicke 
said,   that  where  there    had  been  a  long   possession  under   an 

(a)  2  Bl.  Comm.  185.  {I)  Trewen  v.  llclfe,  2  Bro.  C.  C.  220. 

equity  is  as  much  a  matter  of  right,  as  at  law.  1  Story,  Eq.  Jur.  §  053 ;  Wiselcy 
v.  Findiay,  3  Rand.  3G1 ;  Straughtan  v.  Wright,  5  Rand.  493  ;  Baring  v.  Nash,  1  Ves. 
&  Bea.  555. 

72* 


858     Title  XVIII.    Joint  Tenancy.     Ch.  II.  s.  45—46. 

agreement  for  owelty  of  partition,  the  Court  was  strongly  in- 
clined to  quiet  the  enjoyment  of  such  estates ;  and  he  was  at 
first  of  opinion  to  establish  the  agreement,  but  it  appeared  that  it 
was  only  an  agreement  between  the  husbands,  which  could  by 
no  means  bind  the  inheritance  of  the  two  wives ;  for  the  argu- 
ment of  long  enjoyment  was  of  no  force,  unless  it  had  been 
originally  the  agreement  of  the  wives.  His  Lordship  further 
observed,  that  if  a  joint  tenant,  upon  a  partition,  thought  proper 
to  accept  of  a  contingent  uncertain  advantage,  where  one  moiety 
of  the  land  was  of  superior  value  to  the  other,  it  would  not  vacate 
the  agreement,  (a) 

46.  The  last  mode  by  which  an  estate  in  joint  tenancy  may 
be  destroyed,  is  by  the  devolving-  of  all  the  shares  on  one  of  the 
joint  tenants,  by  survivorship;  by  which  he  acquires  an  estate  in 
severalty,  f 

(«)  Ireland  v.  Kittle,  1  Atk.  541.    See  Co.  Lit.  171,  a,  note  2.     Vide  tit.  19  and  20. 

t  [The  statute  of  1  Will.  4,  c.  60,  which  authorizes  the  conveyance  of  mortgage  and 
trust  estates  vested  in  infant  and  lunatic  mortgagees  or  trustees,  does  not  extend  to 
cases  of  partition,  §  18.  But  the  statute  1  Will.  4,  c.65,  §  27,  which  relates  to  property 
belonging  to  infants  and  lunatics  beneficially,  authorizes  the  completion  of  contracts 
entered  into  by  persons  subsequently  becoming  lunatic] 


859 


TITLE   XIX. 

COPARCENARY. 


BOOKS   OF  REFERENCE   UNDER  THIS  TITLE. 

Blackstone's  Commentaries.    Book  II.  ch.  12. 
Kent's  Commentaries.    Vol.  IV.  Lect.  64. 
Flintoff  on  Real  Property.     Vol.  II.  Book  I.  ch.  5,  §  3. 
Coke  upon  Littleton,  fol.  163,  a. — 180,  a. 
Preston  on  Abstracts  of  Title.    Vol.  II.  p.  68 — 75. 
Lomax's  Digest.    Vol.  I.  tit.  16. 
Allnatt  on  Partition. 


Sect.  1.  How  this  Estate  arises. 

3.  Properties  of  Coparceners. 
7.  The  Possession  of  one  is  that 
of  the  other. 

10.  Subject  to  Curtesy  and  Dower. 

11.  Destroyed  by  Alienation. 


Sect.  12.  By  voluntary  Partition. 
20.  By  Writ  of  Partition. 
26.  What  may  be  divided  by  it. 

28.  By  Partition  in  Chancery. 

29.  Incidents  after  Partition. 
33.  By  Descent  to  one  of  them. 


Section  1.  An  estate  in  coparcenary  arises,  where  a  person 
seised  of  lands  and  tenements  in  fee  simple,  or  in  tail,  dies  leav- 
ing only  daughters,  sisters,  aunts,  or  other  female  heirs ;  in  which 
case  the  estate  descends  to  all  such  daughters,  sisters,  &c,  jointly ; 
when  they  are  called  coparceners,  and  are  said  to  hold  in  copar- 
cenary, and  to  make  but  one  heir  to  their  ancestor,  (a) J 

2.  An  estate  in  coparcenary  also  frequently  arises  in  conse- 
quence of  gavelkind  and  other  customary  descents  to  all  the  male 
children,  in  which  they  are  coparceners.  Hence,  Littleton  says  that 
coparceners  may  be,  either  by  the  common  lata,  or  by  custom,  (b) 

3.  The  properties  of  coparceners  are  in  some  respects  like  those 


(a)  Lit.  §  241,  242. 


(6)  Lit.  §  241,  242. 


1  In  the  United  States,  as  lands  descend  to  all  the  children,  equally,  there  can  be  no 
substantial  difference  between  coparceners  and  tenants  in  common  ;  and  even  the  tech- 
nical distinction  between  them  may  be  considered  as  essentially  abolished.  In  some  of 
the  States,  all  estates  holden  by  more  than  one  person,  are  expressly  declared  to  be 
tenancies  in  common  ;  and  where  it  is  not  so  declared,  the  effect  is  the  same.  See  4 
Kent,  Comm.  367 ;  ante,  tit.  18,  ch.  1,  §  2,  note;  post,  tit.  29,  ch.  3.  [In  Maryland,  the 
children  of  parents  who  die  intestate,  seised  in  fee  of  lands,  &c,  take  as  coparceners. 
Hoffar  v.  Dement,  5  Gill.  132.] 


860  Title  XIX.     Coparcenary,     s.  3—7. 

of  joint  tenants;  for  they  have  the  same  unities  of  interest,  title, 
and  possession  :  and,  as  they  make  but  one  heir,  they  have  one 
entire  freehold  in  the  land,  in  respect  to  the  prcecipe  of  a  stran- 
ger, (a) 1 

4.  In  many  other  points,  however,  coparceners  differ  materi- 

ally from  joint  tenants.  First,  they  always  claim  by  de- 
392*     scent,  whereas  *  joint  tenants  always  claim  by  purchase. 

Thus  Littleton  says,  if  sisters  purchase  lands  or  tene- 
ments, they  are  joint  tenants  thereof,  not  coparceners.  Hence  it 
likewise  follows  that  no  estates  can  be  held  in  coparcenary  but 
such  as  are  of  a  descendible  nature,  whereas  it  has  been  stated 
that  estates  for  life  and  years  may  be  held  in  joint  tenancy,  (b) 

5.  No  unity  of  time  is  necessary  to  an  estate  in  coparcenary  ; 
for  if  a  man  has  two  daughters  to  whom  his  estate  descends,  and 
one  dies  leaving  issue  a  son,  such  son  and  the  surviving  daugh- 
ter, and  when  both  the  daughters  are  dead  their  two  heirs,  will 
be  coparceners,  though  the  estates  vest  in  them  at  different 
times,  (c) 

6.  Coparceners,  though  they  have  an  unity,  have  not  an  en- 
tirely of  interest ;  for  between  themselves,  to  many  purposes, 
they  have,  in  judgment  of  law,  several  freeholds.  They  are 
properly  entitled,  each  to  the  whole  of  a  distinct  moiety ;  and  of 
course  there  is  no  jus  accrescendi,  or  survivorship,  between  them ; 
for  each  part  descends  severally  to  their  respective  heirs,  though 
the  unity  of  possession  continues,  (d) 

7.  The  possession  of  one  coparcener  f  is,  at  the  common  law, 
the  possession  of  the  other;  the  entry  of  one  coparcener  generally 
is  also  accounted  in  law  the  entry  of  both,  and  no  divesting  of 
the  moiety  of  the  other.2  But  Lord  Coke  says,  where  one  copar- 
cener enters  specially,  claiming  the  whole  land,  and  taking  the 

(a)  1  Inst.  163,  b.  169,  a.       (b)  Lit.  §  264.         (c)  1  Inst.  164,  a.      (d)  lb.     2  Bl.  Coram.  188. 


1  Parceners  have,  in  equity,  the  same  mutual  remedies  for  an  account  of  rents  and 
profits,  as  joint  tenants  and  tenants  in  common  have,  though  they  are  not  mentioned 
in  the  statute  of  3  &  4  Ann.  See  ante,  tit.  18,  ch.  1,  §  64,  note  ;  4  Kent,  Comm.  366, 
note  ;  2  Com.  Dig.  p.  325,  540,  Chancery,  2  A  1 ;  lb.  3  V  6 ;  I  Story,  Eq.  Jur.  §  466; 
2  Greenl.  on  Evid.  §  34—39.     [See  Hoffar  v.  Dement.  5  Gill,  132.] 

[2  See  Purcell  v.  Wilson,  4  Gratt.  16 ;  Gill  v.  Fauntleroy,  8  B.  Mon.  177.] 
[t  By  the  12th  section  of  the  statute  of  3  &  4  Will.  4,  ch.  27,  it  is  enacted  that  the 
possession  of  one  of  several  coparceners,  joint  tenants,  or  tenants  in  common,  shall  not 
be  deemed  the  possession  of  the  others.     Vide  supra,  title  18,  ch.  1,  $  26.] 


Title  XIX.     Coparcenary,    s.  7—9.  861 

whole  profits,  she  gains  one  moiety,  namely,  that  of  her  sister 
by  abatement ;  and  yet  her  dying  seised  shall  not  take  away  the 
entry  of  her  sister. 

In  a  note  to  this  passage,  taken  from  Lord  Nottingham's 
manuscripts,  it  is  said — "  The  contrary  is  held ;  that  one  copar- 
cener cannot  be  disseised  without  actual  ouster ;  and  claim  shall 
not  alter  the  possession  ; "  and  the  case  of  Smals  v.  Dale,  which 
will  be  stated  in  the  next  title,  was  cited,  (a) 

8.  Where  both  coparceners  are  actually  seised,  Lord  Coke 
says,  the  taking-  of  the  whole  profits,  or  any  claim  made  by  the 
one  cannot  put  the  other  out  of  possession,  without  an  actual  put- 
ting out  or  disseisin  ;  but  if  one  coparcener  enters,  claiming  the 
whole,  and  makes  a  feoffment  in  fee,  and  takes  back  an 

*  estate  to  her  and  her  heirs,  and  hath  issue,  and  dies     *  393 
seised,  this   descent  shall  take  away  the  entry  f  of  the 
other  sister  ;  because,  by  the  feoffment,  the  privity  of  the  copar- 
cenary was  destroyed.1     And  this  doctrine  was  admitted  in  the 
following  case,  (b) 

9.  In  a  writ  of  error  from  the  Court  of  King's  Bench  in  Ire- 
land to  that  of  England,  the  case  was,  that  Maurice  Tyrrell, 
being  a  Roman  Catholic,  died  seised  of  certain  land,  leaving  two 
sons,  Richard  and  James.  By  the  Irish  statute,  2  Ann.,  estates 
in  fee  simple  and  fee  tail,  belonging  to  Roman  Catholics,  de- 
scended to  all  the  sons,  as  if  the  lands  were  held  in  gavelkind  : 
on  the  death  of  Maurice,  his  eldest  son  Richard  entered  alone, 
held  the  same  for  sixty-two  years,  till  his  death ;  and  in  the  mean- 
time settled  the  same  by  fine  and  recovery,  to  which  James  his 
brother,  was  privy.  On  the  death  of  Richard,  in  1766,  leaving 
two  daughters,  James,  the  lessor  of  the  plaintiff,  brought  an 
ejectment  against  his  two  nieces,  for  two  thirds  of  the  moiety  of 
the  lands,  whereof  his  brother  died  seised,  as  co-heir  in  gavelkind 
with  his  brother  ;  the  other  third  being  assigned  to  the  widow  of 
Richard  for  her  dower. 

(a)  1  Inst.  243,  b.  n.  1,  373,  b.     (Hob.  120.     Post,  tit.  20,  §  15.) 
(6)  1  Inst.  373,  b.     Vide  siqira,  tit.  18,  §  26.     1  Inst.  243,  b. 


t  [By  statute  3  &  4  Will.  4,  c.  27,  §  39,  it  is  enacted  that  no  descent  cast,  discon- 
tinuance, or  warranty,  which  shall  happen  after  the  31st  of  December,  1833,  shall  toll 
or  defeat  any  right  of  entry  or  action  for  the  recovery  of  land.] 

1  As  to  the  effect  of  a  descent  cast,  and  how  far  it  is  taken  away  by  statutes,  sec  post 
tit.  29,  ch.  1,  §  7,  note. 


862  Title  XIX.     Coparcenary,     s.  9—11. 

On  the  trial,  the  Judge  directed  the  jury  to  find  a  verdict  for  ■ 
the  plaintiff;  upon  which  a  bill  of  exceptions  was  tendered, 
setting  out  in  substance  this  case,  which  was  returned  into  the 
King's  Bench  in  Ireland;  and  thereupon  the  Court  gave  judg- 
ment for  the  defendants.  A  writ  of  error  was  then  brought  in 
the  Court  of  King's  Bench  at  Westminster ;  and  it  was  argued 
for  the  defendants,  that  sixty-two  years'  sole  possession,  and  the 
fine,  were  a  bar  to  this  action  by  the  common  law ;  that  this 
was  a  question,  not  between  joint  tenants  or  tenants  in  common, 
but  tenants  in  gavelkind,  who  were  coparceners ;  and  that  the 
true  state  of  the  law  was  this  :  1.  If  both  enter,  there  must  be 
an  actual  ouster  to  make  a  disseisin ;  2.  If  one  enters  generally, 
and  takes  the  profits,  this  is  no  disseisin ;  3.  If  one  enters  spe- 
cially, as  in  the  present  case,  claiming  right  to  the  whole,  and 
taking  the  whole  profits,  this  is  a  disseisin  ;  but  after  his  death, 
the  other  may  enter,  unless  barred  by  the  Statute  of  Limita- 
tions ;  4.  If,  after  a  special  entry,  one  by  feoffment  or  fine 
394  *  *  destroys  the  coparcenary,  and  takes  back  an  estate  in 
fee,  and  dies,  the  entry  of  the  other  is  barred.  Here 
Richard  entered  alone  in  1704  ;  took  the  whole  profits ;  settled 
the  estate  in  1727,  with  the  privity  of  James,  by  a  fine ;  and 
died,  after  having  been  sixty-two  years  in  possession.  The  entry 
of  James  was  therefore  clearly  barred,  and  he  could  not  maintain 
an  ejectment. 

The  Court  said,  that  the  statute  2  Ann.  made  the  lands  of 
Roman  Catholics  descend  in  gavelkind  ;  that  was  its  whole  effect ; 
and  then  the  adverse  possession  of  one  gavelkind  tenant  would 
not  operate  as  the  possession  of  both.  That  was  a  qualified 
rule  ;  and  in  the  present  case  the  acts  of  ownership,  fine,  &c. 
made  an  actual  ouster ;  so  that  the  Statute  of  Limitations  barred 
the  plaintiff,  (a) 

10.  Curtesy  and  dower  are  incident  to  estates  held  in  copar- 
cenary;  as  no  survivorship  takes  place,  each  share  descending 
to  the  heir  of  the  respective  coparceners.  But  in  such  "a  case, 
dower  can  only  be  assigned  in  common  ;  for  the  widow  cannot 
have  it  in  a  different  manner  from  her  husband,  (b) 

11.  Estates  in  coparcenary  may  be  destroyed  by  the  alienation 

(a)  Davenport  v.  Tyrrell,  1  Black.  K.  675.     Coppinger  v.  Keating,  tit.  20.    Tit.  31,  c.  2. 

(b)  Tit.  6,  c.  3. 


Title  XIX.     Coparcenary,     s.  11—16.  863 

of  one  of  the  coparceners  to  a  stranger,  which  disunites  the  title, 
and  may  disunite  the  interest ;  and  the  lands  cease  to  be  held  in 
coparcenary,  [as  to  the  share  so  conveyed,  where  there  are  three 
or  more  coparceners.]  (a) 

12.  Estates  in  coparcenary  may  be  destroyed  by  partition, 
which  disunites  the  possession  ;  and  Littleton  mentions  four  sorts 
of  voluntary  partitions.  The  first  is  where  coparceners  agree  to 
make  partition,  and  do  make  partition  of  the  tenements,  so  that 
each  takes  a  particular  part  in  severalty. 

13.  Lord  Coke  has  observed  upon  this  section,  that  if  copar- 
ceners make  partition  at  full  age,  and  unmarried,  and  of  sane 
memory,  of  lands  in  fee  simple,  it  is  good  and  firm  forever, 
though  the  values  be  unequal.  But  if  it  be  of  lands  entailed, 
or  if  any  of  the  parceners  be  of  nonsane  memory,  it  shall  bind 
the  parties  themselves,  but  not  their  issues,  unless  it  be  equal.1 
If  any  be  covert,  it  shall  bind  the  husband,  but  not  the  wife,  or 
her  heirs  ;  if  any  be  within  age,  it  shall  not  bind  the  infant,  (b) 

14.  The  second  mode  of  voluntary  partition  is,  where  the  co- 
parceners agree  to  choose  some  friend  to  divide  the  lands ; 

in  *  which  case  the  eldest  daughter  shall  choose  first,  and     *  395 
the  other  daughters  according  to  their  seniority,  (c) 

15.  The  part  which  the  eldest  takes  by  virtue  of  her  priority 
of  age  is  called  enitia  pars?  It  is  a  respect  paid  to  age,  and 
merely  honorary,  for  it  does  not  descend  to  her  issue,  but  the 
next  eldest  sister  shall  have  it;  whereas  all  those  privileges 
which  the  law  gives  to  the  eldest  sister,  that  are  beneficial  to 
herr  descend  to  her  issue,  and  even  go  to  her  assignee,  (d) 

16.  The  third  mode  of  voluntary  partition  is,  where  the  eldest 
makes  the  division  of  the  lands ;  in  which  case  she  shall  choose 

(a)  Co.  Lit.  175,  a.     Infra,  §  22.  (b)  1  Inst.  16G,  a. 

(c)  Lit.  $  244.  (<*)  Lit.  §  245. 


1  Partition  by  persons  of  nonsane  memory,  is  binding  on  them  only  as  their  con- 
tracts are  binding;  namely,  they  are  valid  if  fair  and  equal;  but  if  otherwise,  tbey 
may  be  avoided.  Fitzh.  N.  B.  202,  D.  ;  2  Bl.  Coram.  291,  292  ;  1  Bac.  Abr.  697.  And 
see  2  Greenl.  on  Evid.  §  369 ;  Stock,  on  Non  Compotes  Mentis,  p.  25—30.  [See 
Snowdcn  v.  Dunlaney,  11  Penn.  State  Rep.  (1  Jones,)  522;  Matter  of  Latham,  6  Ired. 
Eq.  406.] 

2  This  word,  says  Lord  Coke,  is  called  in  old  books  teisnitia,  which  is  derived  of 
the  French  word  eisne,  for  eldest.  1  Inst.  166,  b.  [See  Wilhelra  v.  Wilhelm,  4  Md.  Ch. 
Decis.  330.1 


864  Title  XIX.     Coparcenary,     s.  16—21. 

last ;  for   Lord  Coke  says,  the  rule  of  law  is,  cujus  est  divisio, 
alterius  est  electio  ;  for  avoiding  partiality,  (a) 

17.  The  fourth  mode  of  voluntary  partition  is,  to  have  the 
lands  divided,  and  then  the  sisters  to  draw  lots  for  their  shares. 
And  Lord  Coke  observes  that  in  this  kind  of  partition  coparce- 
ners fortunam  faciunt  judicem. 

18.  Lord  Coke  also  observes  that  there  are  other  partitions  in 
deed  besides  those  here  mentioned ;  for  a  partition  between  two 
coparceners,  that  the  one  shall  have  and  occupy  the  land  from 
Easter  until  the  1st  of  August  in  severalty,  and  the  other  shall 
have  and  occupy  the  land  from  the  1st  of  August  till  Easter, 
yearly  to  them  and  their  heirs,  is  a  good  partition.  Also,  if  two 
coparceners  have  two  manors  by  descent,  and  they  make  parti- 
tion, and  the  one  shall  have  one  manor  for  one  year,  and  the 
other  the  other  manor  for  that  year,  and  so  alternis  vicibus  to 
them  and  their  heirs ;  this  is  a  good  partition.  The  same  law  is, 
if  a  partition  be  made  for  two  or  more  years,  and  each  coparcener 
has  an  estate  of  inheritance,  and  no  chattel ;  albeit  either  of  them, 
alternis  vicibus,  has  the  occupation  but  for  a  certain  term  of 
years,  (b) 

19.  These  partitions  might  formerly  have  been  made  by  parol 
only,  without  deed  or  livery ;  but  in  consequence  of  the  Statute 
of  Frauds,  29  Cha.  II.  c.  3,  no  legal  partition  can  now  be  made 
between  coparceners  without  deed.  But  an  agreement  in  writing 
to  make  a  partition,  will  have  the  same  effect  in  equity  as  an 
actual  partition  at  law.  (c) 

20.  Where  coparceners  could  not  agree  upon  any  of  the  pre- 
ceding modes  of  partition,  any  one  or  more  of  them  might  bring 

a  writ  of  partition  against  the  others  or  other  of  them ; 
396*     and  when  *  judgment  was  given  upon  this  writ,  that  a 

partition  should  be  made  between  the  parties,  the  sheriff 
and  jury  made  a  division  of  the  lands,  in  the  same  manner  as 
between  joint  tenants,  not  making  mention  in  the  judgment  of 
the  elder  sister  more  than  of  the  younger  (d) 

21.  At  common  law,  the  writ  of  partition  lay  for  one  copar- 
cener, tenant  of  the  freehold,  against  the  other,  and  against  the 
alienee  of  such  coparcener ;  but  it  lay  not  for  the  alienee,  nor  for 

(a)  Lit.  §  245.  (b)  1  Inst.  167,  i\. 

(c)  Lit.  §250.    (4  Hen.  &  Munf.  19.)    Tit.  18,  c.  2. 

(d)  Lit.  §  247,  248.    Tit.  18,  c.  2,  §  SO. 


Title  XIX.     Coparcenary,     s.  21—26.  865 

the  tenant  by  the  curtesy.  And  if  one  coparcener  had  made  a 
lease  for  life,  she  could  not  afterwards  bring  a  writ  of  partition 
during  the  continuance  of  that  estate,  (a)  * 

22.  If  there  were  three  coparceners,  and  the  eldest  purchased 
the  part  of  the  youngest,  yet  she  should  have  a  writ  of  partition 
at  common  law  against  the  middle  sister ;  for  though  she  had 
one  part  by  purchase,  yet  this  did  not  strip  her  of  her  character 
of  a  coparcener.  It  wTas  a  stronger  case  where  there  were  three 
coparceners,  and  the  eldest  took  a  husband,  who  purchased  the 
share  of  the  youngest.  The  husband  was  a  stranger,  and  no  co- 
parcener ;  yet  he  and  his  wife  should  have  a  writ  of  partition 
against  the  middle  sister,  at  the  common  law ;  because  he  was 
seised  of  one  part  in  right  of  his  wife,  who  was  a  parcener. 

23.  A  tenant  by  the  curtesy  might  have  a  writ  of  partition  upon 
the  Statute  32  Hen.  VIII. ;  for  although  he  was  neither  joint  ten- 
ant nor  tenant  in  common,  (for  that  a  prcecipe  lay  against  the 
parcener  and  tenant  by  the  curtesy,)  yet  he  was  in  equal  mischief 
as  another  tenant  for  life,  (b) 

24.  The  proceedings  under  a  writ  of  partition  were  somewhat 
altered  by  the  statutes  31  Hen.  VIII.  c.  1,  and  32  Hen.  VIII. 
c.  32,  and  still  more  by  the  statutes  8  &  9  Will.  III.  c.  31,  f  all 
of  which  extended  to  coparceners ;  and  have  been  stated  in  the 
preceding  title. 

25.  It  has  been  held,  in  a  modern  case,  that  the  statutes  re- 
specting partitions,  do  not  extend  to  copyhold  estates,  (c) 

26.  All  lands  and  other  real  property,  which  are  capable  of  a 
division,  must  be  divided  upon  a  writ  of  partition,  and  set 

out  by  *  metes  and  bounds.    Castles  used  for  the  necessary     *  397 
defence  of  the  realm,  or  which  were  the  heads  of  earldoms 
or  baronies,  were  allotted  to  the  eldest  sister ;   but  castles  for 
habitation  and  private  use,  and  houses,  may  be  divided  among 
coparceners,  (d) 

(a)  1  Inst.  175,  a.  (&)  1  Inst;  175,  a. 

(c)  Burrell  v.  Dodd,  3  Bos.  &  Pul.  37S.  (d)  1  Inst.  164,  b.     Tit.  26,  c.  1. 


i  As  to  the  mode  of  partition-in  the  United  States,  see  post,  tit.  20,  §  38,  note. 

The  proceedings  by  writ  at  common  law  arc  fully  treated  in  Allnatt  on  Partition, 

ch.  3. 

t  [But  the  Writ  of  Partition  is  abolished  from  the  1st  June,  1835,  by  statute  8  &  4 
Will.  4,  ch.  27,  §  36,  37.     Sec  also,  $  38.] 

vol.  i.  73 


866  Title  XIX.     Coparcenary,    s.  27— 31. 

27.  There  are  several  kinds  of  incorporeal  hereditaments  which 
cannot  be  divided  among  coparceners ;  they  were,  therefore,  al- 
lotted to  the  eldest  sister,  and  the  others  had  an  allowance  out  of 
the  rest  of  the  inheritance ;  but  where  nothing  else  descended, 
then  it  was  agreed  that  each  coparcener  should  have  them  for  a 
certain  time,  (a) 

28.  Partitions  between  coparceners  are  now  usually  made  by 
means  of  a  bill  in  Chancery,1  in  the  same  manner  as  partitions 
between  joint  tenants  ;  and  partitions  may  also  be  made  by  the 
commissioners  of  an  inclosure  act.  (b) 

29.  Though  the  law  gives  to  every  coparcener  a  power  to 
sever  her  own  moiety  or  share,  and  to  carry  it  to  the  family  into 
which  she  marries ;  yet  since  the  partition  is  compulsory,  the 
law  will  not  put  coparceners  in  a  worse  condition,  after  partition, 
than  if  they  had  enjoyed  their  shares  in  coparcenary  ;  therefore, 
in  a  suit  commenced  for  any  part,  or  on  eviction  of  any  part,  they 
shall  have  like  remedy  as  if  they  had  enjoyed  in  common;  in 
which  case,  if  a  suit  had  been  commenced,  both  parties  must 
have  been  impleaded ;  and  on  a  recovery,  there  had  been  an 
equal  loss  to  both,  (c) 

30.  There  is,  therefore,  after  partition,  a  warranty  annexed  to 
each  part;  so  that  if  either  be  impleaded,  she  may  vouch  her 
sister ;  and  if  she  loses,  she  may  recover  one  moiety  of  her  loss 
in  value  against  the  other  sister.  For  there  is  a  condition  an- 
nexed to  every  partition,  that  if  either  the  whole,  or  any  share, 
or  an  estate  for  life,  or  in  tail  thereout,  be  evicted,  the  party  so 
evicted  may  enter  on  her  sister's  moiety,  and  avoid  the  partition 
of  an  undivided  moiety  of  what  is  left,  (d) 

31.  If  two  houses  descend  to  two  coparceners,  one  worth 
twenty  shillings  a  year,  and  the  other  only  worth  ten  shillings  a 
year,  each  coparcener  upon  a  partition  shall  have  a  house  ;  but 
she  who  has  the  house  worth  twenty  shillings  a  year,  shall  pay 
to  the  other,  and  her  heirs,  five  shillings  a  year,  that  the  partition 
may  be  equal ;  and  distress  may  be  of  common  right,  into  whose 
hands  soever  the  house  goes,  (e) 

(a)  1  Inst.  1G4,  b.  165,  a.  (b)  Tit.  18,  c.  2,  §  42.     Tit.  20.  (c)  1  Inst.  173. 

(d)  Idem.     Tit.  32,  c.  25.  I  (e)  Lit.  §  251,  252. 


1  As  to  partition  by  bill  in  Chancery,  see  1  Story  on  Eq.  Jur.  ch.  14,  §  646 — 658 : 
Allnatt  on  Partition,  ch.  4. 


Title  XIX.     Coparcenary,    s.  32—33.  867 

*  32.  This  kind  of  rent  is  called  a  rent  for  owelty  or    *  398 
equality   of  partition,   and    might    formerly   have    been 
en-anted  without  deed  ;  and  where  a  rent  of  this  kind  is  granted 
generally,  it  shall  issue  out  of  the  grantor's  share,  and  shall  go  in 
coparcenary,  (a) 

33.  Estates  in  coparcenary  are  also  destroyed  by  the  whole  at 
last  descending  to  one  of  the  coparceners,  which  brings  it  to  an 
estate  in  severalty. 

(«)  1  Inst.  169,  b. 


868 


TITLE   XX. 

TENANCY   IN   COMMON. 
BOOKS    OF    REFERENCE   UNDER  THIS  TITLE. 

Blackstone's  Commentaries.    Book  II.  cb.  12. 
Kent's  Commentaries.    Vol.  IV.  Lect.  64. 
Coke  upon  Littleton,  fol.  188,  b. — 200,  b. 
Flintoff  on  Real  Property.  .^Vol.  II.  Book  I.  cb.  5,  §  3. 
Preston  on  Abstracts  of  Title.    Vol.  II.  p.  75 — 78. 
Lomax's  Digest.    Vol.  I.  Tit.  XVII. 
Allnatt  on  Partition. 


Sect.  30.  Destroyed  by  Voluntary  Par- 
tition. 
31.  By  Writ  of  Partition. 
34.  By  Partition  in  Chancery. 

38,  n.   By   Partition    under    an 

Inclosure  Act. 

39.  By  uniting  all  the  Titles. 


Sect.     1.  Description  of. 
3.  How  created. 
8.  Incidents  to  this  Estate. 
14.   The  Possession  of  one  is  that 

of  the  other. 
21.  Subject  to  Curtesy. 
23.  And  to  Dower. 
26.  [As  to  Doiuer,  ivith  Respect  to 
Real  Estate  being   Part- 
nership Property. 


Section  1.  A  tenancy  in  common  is  where  two  or  more  persons 
hold  lands  or  tenements  in  fee  simple,  fee  tail,  or  for  term  of  life 
or  years,  by  several  titles ;  not  by  a  joint  title ;  and  occupy  the 
same  lands  or  tenements  in  common  ;  from  which  circumstance 
they  are  called  tenants  in  common,  and  their  estate  a  tenancy  in 
common,  (a) 

2.  The  only  unity  required  between  tenants  in  common  is  that 
of  possession.  For  one  tenant  in  common  may  hold  his  part  in 
fee  simple,  the  other  in  tail,  or  for  life  ;  so  that  there  is  no  unity 
of  interest.  One  may  hold  by  descent,  the  other  by  purchase  ; 
or  the  one  by  purchase  from  one  person,  and  the  other  by  pur- 
chase from  another ;  so  that  there  is  no  unity  of  title.  One's 
estate  may  have  been  vested  fifty  years,  the  other  but  yesterday ; 
so  that  there  is  no  unity  of  time,  (b) 

3.  A  tenancy  in  common  may  be  created  by  the  destruction  of 

(a)  Lit.  §  292.    1  Inst.  190,  b.  (&)  2  Bl.  Comm.  191. 


Title  XX.     Tenancy  in  Common,    s.  3 — 9.  869 

an  estate  in  joint  tenancy  or  coparcenary.  Thus  Littleton  says, 
if  a  man  enfeoffs  two  joint  tenants  in  fee,  and  one  of  them  en- 
feoffs a  stranger  of  his  share,  the  alienee  and  the  other  joint 
tenant  are  tenants  in  common,  (a) 

*  4.  So,  if  two  persons  have  an  estate  in  coparcenary,     *  400 
and  one  of  them  alienes  his  share  to  a  stranger,  the  alienee 
and  the  other  coparcener  become  tenants  in  common,  (b) 

5.  It  has  been  stated  in  a  preceding  title,  that  Avhere  lands 
are  given  to  two  men,  and  the  heirs  of  their  bodies,  they  have  a 
joint  estate  for  their  lives,  and  several  inheritances ;  so  that  they 
are  joint  tenants  for  life,  and  tenants  in  common  in  tail,  of  the 
inheritance,  (c) 

6.  If  lands  be  given  to  John,  Bishop  of  Norwich,  and  his 
successors,  and  to  John  Overall,  Doctor  of  Divinity,  and  his 
heirs,  being  one  and  the  same  person,  he  is  tenant  in  common 
with  himself  (d) 

7.  A  tenancy  in  common  may  also  be  created  by  express  lim- 
itations in  a  deed  or  will,  of  which  an  account  will  be  given 
hereafter,  (e)  1 

8.  Tenancies  in  common  descend  to  the  heirs  of  each  of  the 
tenants,  because  they  have  several  freeholds,  and  not  an  entirety 
of  interest,  like  joint  tenants ;  therefore  there  is  no  survivorship 
among  them. 

9.  By  the  old  law,  tenants  in  common  had  no  remedy  against 
each  other  for  the  rents  of  the  estate ;  but  by  the  statute  4  &  5 
Ann.  c.  16,  s.  27,  actions  of  account  are  maintainable  by  tenants 
in  common  against  each  other,  in  the  same  manner  as  by  joint 
tenants ;  and  by  the  statute  of  Westm.  2,  ch.  22,  they  have  the 
same  remedies  against  each  other,  in  cases  of  ivastc,  as  joint 
tenants.  (/)  2 

(a)  Lit.  §  292-299.  (6)  LI.  309.  (c)  Tit.  13,  c.  1,  §  7. 

(d)  1  Inst.  190,  a.  (e)  Tit.  32  &  38.  (/)  Tit.  18,  c.  1,  §  64,  65. 

1  [Where  land  is  demised  to  be  cultivated  on  shares,  the  parties  are  tenants  in  com- 
mon of  the  crop  until  the  division  is  made.  Dinehart  v.  Wilson,  15  Barb.  Sup.  Ct. 
595;  Tripp  v.  Riley,  lb.  333;  Thompson  v.  Mawhinncy,  17  Ala.  362;  Strother  v.  But- 
ler, lb.  733;  Smith  v.  Tankersley,  20  Ala.  212;  Aiken  v.  Smith,  21  Vt.  (0  Washb.) 
172  ;  Ferrall  v.  Kent,  4  Gill.  209.] 

2  | By  the  new  code  of  Missouri,  (1849,)  one  tenant  in  common  may  sue  another  in 
the  ordinarv  form  of  action,  and  it  is  not  necessary  to  resort  to  the  action  of  account. 
Rogers  v.  Benniston,  16  Mis.  (I  Bennett,)  432.  One  tenant  in  common  may  sue  in 
assumpsit  his  co-tenant,  who  has  received  the  rents  and  profits,  for  his  share  thereof. 

73* 


870  Title  XX.     Tenancy  in  Common,    s.  10 — 11. 

10.  If  two  tenants  in  common  be  of  a  dove-house,  and  the 
one  destroy  the  old  doves,  whereby  the  flight  is  wholly  lost,  the 
other  tenant  in  common  shall  have  an  action  of  trespass  ; 2  for 
the  whole  flight  is  destroyed,  therefore,  he  cannot,  in  bar,  plead 
tenancy  in  common.  So  it  is  if  two  tenants  in  common  be  of  a 
park,  and  one  destroys  all  the  deer,  an  action  of  trespass  lies,  (a) 

11.  It  was  held  in  Trin.  6  Eliz.,  by  Dyer  and  Weston,  that  if 
there  be  two  tenants  in  common  of  a  wood,  and  the  one  leases 
his  part  to  the  other  for  years,  if  the  lessee  cuts  down  trees  and 

(«)  1  List.  200,  a.    (2  Greenl.  on  Evid.  §  615,  and  cases  there  cited.) 

Buck  v.  Spofford,  31  Maine,  (1  Red.)  34.  To  support  such  action,  it  must  appear  that 
the  defendant  has  received  more  than  his  share,  not  merely  of  a  single  article  of  pro- 
duce, but  of  the  entire  profits  of  the  estate,  after  deducting  all  reasonable  charges :  and 
that  the  balance  is  due  to  the  plaintiff,  and  not  to  other  co-tenants.  Shepard  v.  Richards, 
2  Gray,  424.  And  the  mortgagee  of  a  tenant  in  common  who  has  entered  to  foreclose, 
may  have  such  action.  Shepard  v.  Richards,  ubi  supra.  See  also  Wilbur  v.  Wilbur,  13 
Met.  404;  Woolever  v.  Knapp,  18  Barb.  Sup.  Ct.  265.] 

1  Trespass  will  lie  for  one  tenant  in  common  against  another,  for  any  act  of  perma- 
nent injury  to  the  inheritance,  such  as  making  pits  in  the  land,  digging  turves,  and  the 
like,  when  not  done  in  the  lawful  exercise  of  a  right  of  common.  Wilkinson  v.  Hag- 
garth,  11  Jur.  104.  And  it  seems  that  trover  also  will  lie  for  a  chattel,  where  the  appro- 
priation of  it  by  one  tenant  in  common  is  such  as  finally,  by  its  nature,  to  preclude  the 
other  party  from  any  future  enjoyment  of  it.  See  2  Greenl.  on  Evid.  §  646,  note  (8), 
and  cases  there  cited. 

[A  tenant  in  common  with  others  of  a  meeting-house  may  maintain  trespass  for 
injuring  one  of  the  pews,  against  a  person  having  no  title  either  in  the  pew  or  in  the 
house.  Murray  v.  Cargill,  32  Maine,  (2  Red.)  517.  One  tenant  in  common  has  no 
right  by  means  of  a  dam  erected  on  other  land  of  which  he  is  sole  seised,  to  flow  the 
land  held  in  common  without  the  consent  of  his  co-tenants,  and  the  co-tenants  may  bring 
suit  therefor.  Great  Falls  Co.  v.  Worcester,  15  N.  H.  412.  A  tenant  in  common  may 
have  assumpsit  against  his  co-tenant,  for  his  share  of  the  damages  caused  by  cutting 
timber ;  and  this,  although  he  has  alienated  his  interest  in  the  land  after  the  cutting, 
and  before  he  brought  suit.     Blake  v.  Milliken,  14  N.  II.  213. 

One  tenant  in  common  in  possession  is  not  liable  in  trover  by  his  co-tenant,  for  his 
portion  of  the  crop  grown  on  the  land,  but  he  must  account  to  his  co-tenant  for  the  rents 
and  profits.  Keisel  v.  Earnest,  21  Penn.  (9  Harris,)  90.  If  some  of  several  co-tenants 
permit  one  co-tenant  to  enter  upon  the  premises  held  in  common,  no  terms  being  fixed, 
such  co-tenant  is  not  thereby  made  tenant  from  year  to  year,  but  is  only  tenant  at  will 
of  those  co-tenants  granting  the  permission,  and  of  their  shares.  Keisel  v.  Earnest,  21 
Penn.  (9  Harris,)  90. 

Where  there  is  an  actual  ouster,  a  tenant  in  common  can  bring  ejectment.  Johnson 
v.  Swain,  Busbee  Law,  (N.  C.)  335.  And  see  Hammett  v.  Blount,  1  Swan,  (Tenn.) 
385.  One  tenant  in  common  may  sustain  trespass  to  try  title  against  a  stranger.  Croft 
v.  Rains,  10  Texas,  ,520.  See  also  Tripp  v.  Riley,  15  Barb.  Sup.  Ct.  R.  333.  One 
tenant  in  common  cannot,  unless  authorized  by  them,  execute  a  lease  which  will  bind 
his  co-tenants — Mussey  v.  Holt,  4  Foster,  (N.  H.)  248 — nor  discharge  a  claim  upon  the 
land.  Allen  v.  Woodward,  2  lb.  544.  One  tenant  in  common,  who  has  leased  to  his 
co-tenant,  may  distrain  for  the  rent,     Luther  v.  Arnold,  8  Rich.  (S.  C)  24.] 


Title  XX.     Tenancy  in  Common,     s.  11 — 13.  871 

does  waste,  he  will  be  punished  for  a  moiety  of  the  waste,  and 
the  lessor  may  recover  a  moiety  of  the  place  wasted,  (a)  l 

12.  One  tenant  in  common  cannot,  however,  maintain  an 
action  on  the  case,  in  the  nature  of  waste,  against  another 

*  tenant  in  common,  in  possession  of  the  whole,  under  a     *  401 
demise  of  his  companion's  moiety,  for  cutting  down  trees 
of  a  proper  age  and  growth  for  being  cut. 

13.  In  an  action  on  the  case,  in  the  nature  of  waste,  it  ap- 
peared that  the  plaintiff  and  defendant  were  tenants  in  common 
of  land,  on  which  were  several  trees,  growing ;  that  the  defend- 
ant occupied  the  whole,  having  a  demise  from  the  plaintiff  of 
his  moiety ;  and  that  he  had  felled  many  trees,  all  of  which  were 
of  a  proper  age  to  be  cut  down. 

The  Judge  directed  a  verdict  to  be  taken  for  the  plaintiff,  for 
the  value  of  half  the  trees,  with  leave  for  the  defendant  to  set  it 
aside,  if  the  Court  should  be  of  opinion  that  the  action  could  not 
be  maintained. 

On  a  motion  to  enter  a  verdict  for  the  defendant,  Lord  Kenyon 
said,  the  verdict  had  neither  principle  nor  authority  for 
*its  support.  The  defendant  could  not  be  in  a  worse  *402 
situation,  by  being  tenant  to  the  plaintiff  of  his  moiety, 
than  he  would  have  been  in,  if  the  plaintiff  had  not  demised  to 
him  ;  and,  considered  in  that  point  of  view,  the  action  could  not 
be  supported.  This  was  an  action  ex  delicto ;  if  one  tenant  in 
common  misused  that  which  he  had  in  common  with  another,  he 
was  answerable  to  the  other,  in  an  action,  as  for  misfeasance. 
But  here  it  did  not  appear  that  the  defendant  committed  any 
thing  like  waste;   no  injury  was  done  to  the  inheritance,  no 

(a)  Moo.  71,  pi.  164. 


1  [In  general,  equity  will  not  interfere  between  tenants  in  common  to  restrain  waste, 
on  the  ground  that  one  tenant  in  common  has  a  right  to  enjoy  as  lie  pleases,  and  that 
the  party  complaining  may  relieve  himself  at  law  by  having  partition,  and  the  Court 
will  not  act  against  the  legal  title  to  possession  of  a  tenant  in  common.  The  Court 
will,  however,  restrain^  tenant  in  common  in  some  special  cases  of  waste,  and  under 
peculiar  circumstances"  So  also  injunctions  will  be  granted  in  special  cases  to  prevent 
an  inequitable  exercise  of  the  legal  rights,  which  every  tenant  in  common  possesses  ; 
and  courts  of  equity  uniformly  interfere,  when  one  tenant  in  common  is  committing 
acts,  which,  if  permitted  to  go  on,  would  amount  to  a  destruction  of  the  property. 
Courts  of  Equity  will  not  refuse  their  aid  to  protect  the  common  estate  from  total  ruin 
by  a  tenant  in  common.  Ballou  v.  Wood,  8  Cush.  52.  Sec,  also,  Obert  v.  Obcrt. 
1  Halst  Ch.  (New  Jersey,)  397.] 


872  Title  XX.     Tenancy  in   Common,    s.  13—14. 

timber  was  improperly  felled ;  the  defendant  only  cut  those  trees 
that  were  fit  to  be  cut ;  and  if  he  were  liable  in  such  an  action 
as  this,  it  would  have  the  effect  of  enabling  one  tenant  in  com- 
mon to  prevent  the  other's  taking  the  fair  profits  of  the  estate. 
In  another  form  of  action  the  plaintiff  would  be  entitled  to 
recover  a  moiety  of  the  value  of  the  trees  that  were  cut.  Verdict 
for  the  defendant,  (a) 

14.  The  possession  and  seisin  of  one  tenant  in  common  is  the 
possession  and  seisin  of  the  other,f  because  such  possession  is 
not  adverse  to  the  right  of  his  companion,  but  in  support  of  their 
common  title.1  And  although  one  tenant  in  common  takes  the 
whole  profits,  yet  this  does  not  divest  the  possession  of  his  com- 
panion.2 But  if  one  tenant  in  common  should  drive  off  the 
cattle  of  his  companion  from  the  land,  or  prevent  him  from 
entering  upon  and  occupying  the  land,  this  would  divest  the 
possession,  so  as  to  entitle  the  companion  to  bring  an  eject- 
ment, (b)  3 

(a)  Martin  v.  Knowllys,  8  Tenia  R.  145.  (Z>)  1  Inst.  199,  b.     Cro.  Eliz.  641. 

t  [Now  otherwise  by  statute  3  &  4  Will.  4,  c.  27,  §  12,  supra,  tit.  18,  eh.  1,  §  26.] 
1See,  accordingly,  Barnard  v.  Pope,  14  Mass.  434;  Brown  v.  Wood,  17  Mass.  68; 
Shuraway  v.  Holbrook,  1  Pick.  114 ;  Catlin  v.  Kidder,  7  Verm.  12  ;  Jackson  v.  Tibbits, 
9  Cowen,  241;  McClung  v.  Boss,  5  Wheat.  116;  Knox  v.  Silloway,  1  Fairf.  201; 
Parker  v.  Proprietors  of  Locks,  &c,  3  Met.  99  ;  Taylor  v.  Cox,  2  B.  Monr.  429  ; 
Thomas  v.  Hatch,  3  Sumn.  170  ;  Clymer  v.  Dawkins,  3  How.  S.  C.  Rep.  674  ;  Colburn 
v.  Mason,  12  Shepl.  434  ;  [Small  v.  Clifford,  38  Maine,  (3  Heath,)  213.  Buckmaster 
v.  Needham,  22  Vt.  (7  Washb.)  617  ;  Cunningham  v.  Roberson,  1  Swan,  (Tenn.)  138.] 

2  See  Lloyd  v.  Gordon,  2  H.  &  McHen.  254  ;  Willison  v.  Watkins,  3  Pet.  51  ;  Cham- 
bers v.  Chambers,  3  Hawks,  232 ;  [Wass  ».  Buckman,  38  Maine,  (3  Heath,)  356  ;  John- 
son v.  Toulmin,  18  Ala.  50.] 

3  It  is  well  settled  that  one  tenant  in  common  may  disseise  another.  The  nature  of 
a  disseisin,  and  what  acts  amount  to  it,  have  already  been  shown.  See  ante,  Vol.  I. 
tit.  1,  §  34,  note  (3).  But  acts  of  ownership  are  not,  in  tenancies  in  common,  neces- 
sarily acts  of  disseisin.  It  depends  on  the  intent  with  which  they  are  done,  and  their 
notoriety.  The  law  will  not  presume,  without  evidence,  that  any  man  intends  to  do  an 
unlawful  act;  but  will  presume  that  every  man,  having  a  right  of  entry  or  possession, 
enters  or  occupies  according  to  his  title ;  and  of  course  it  presumes  that  those  acts, 
which,  if  done  by  a  stranger,  would  per  se  be  a  disseisin,  are,  when  done  by  a  tenant  in 
common,  susceptible  of  explanation,  consistent  with  his  [legal  title.  The  question, 
therefore,  of  ouster  of  one  tenant  in  common  by  another,  is  a  question  of  intention,  to  be 
found  by  the  jury,  from  the  overt  acts,  proved  in  the  case.  See  Prescott  v.  Nevers,  4 
Mason,  330;  Parker  v.  Proprietors  of  Locks,  &c,  3  Met.  99.  The  acts  themselves 
must  be  such  as,  if  done  by  a  stranger,  would  be  acts  of  disseisin  ;  and  must  be  shown 
to  have  been  done  adversely  to  the  right  of  the  co-tenant,  and  with  intent  to  oust  him 
and  to  assert  the  actual  and  exclusive  ownership  of  the  entirety.    Thus,  an  ouster  has 


Title  XX.     Tenancy  in  Common,     s.  15.  873 

15.  Lord  Hobart  reports  it  to  have  been  laid  down  by  the 
Court  of  Common  Pleas,  in  12  James,  that  the  entry  of  one 
tenant  in  common  might  be  in  three  ways;  either  in  the  name 
of  herself  or  her  fellow;  or,  generally,  which  shall  always  be 
taken  according  to  right,  as  being  under  construction  of  law, 
and,  therefore,  lawful;  or,  lastly,  entry  claiming  all  expressly; 
which  cannot  dispossess  her  fellow ;  for  her  possession  is  over  all 
lawful,  as  well  before  as  after  such  claim ;  so  that  there  is  no 
possession  altered  by  such  claim.  Then  a  sole  claim  without 
more  can  never  change  the  possession  ;  and  without  a  change  of 
possession  it  remains  as  before.  From  which  it  follows, 
that  a  tenant  in  *  common  can  never  be  disseised  by  his  *403 
fellow,  but  by  an  actual  ouster,  (a) 

{a)  Smals  v.  Dale,  Hob.  120.     1  Salk.  392.     2  Salk.  423. 


been  proved  by  evidence  that  the  party  refused  to  suffer  his  companion  or  his  agent  to 
enter,  and  denied  his  title,  retaining  the  exclusive  possession.  Bracket  v.  Norcross,  1 
Greenl.  89.  So,  where  one  entered,  claiming  title  to  the  entirety  under  a  deed  which 
was  defective  as  to  a  moiety;  it  was  held  a  disseisin  as  to  that  moiety.  Prescott  v. 
Nevers,  supra.  So,  where  one  tenant  in  common,  in  possession,  refused  rent  demanded 
by  the  other,  and  claimed  the  whole  land.  Gregg  v.  Blackmore,  10  Watts,  192.  So, 
an  entry  and  exclusive  possession  by  an  heir,  claiming  the  whole  under  a  title  para- 
mount to  that  of  the  ancestor,  is  a  disseisin  of  his  co-heirs.  Bicard  v.  Williams,  7 
Wheat.  60,  121.  So,  the  purchase,  by  one  tenant  in  common,  of  his  companion's  title, 
at  a  sheriffs  sale,  and  an  exclusive  claim  under  it;  Jackson  v.  Brink,  5  Cowen,  483  : 
and  an  exclusive  claim  under  a  partition,  which  turned  out  to  be  void;  Jackson  v.  Tib- 
bits,  9  Cowen,  241  ;  have  been  held  sufficient  proof  of  an  ouster.  So,  a  conveyance  of 
the  whole,  by  deed,  and  an  entry  by  the  grantee,  under  his  deed.  Bigelow  v.  Jones,  10 
Pick.  161.  [So  where  one  of  two  joint  tenants  overflows  the  lands  of  the  joint  estate 
so  as  to  appropriate  them.  Jones  v.  Weatherbee,  4  Strobh.  50.]  But  a  conveyance  of  a 
distinct  portion  of  the  land,  by  metes  and  hounds,  by  one  joint  tenant  or  tenant  in  com- 
mon, though  it  be  with  warranty,  cannot  operate  to  the  injury  of  his  co-tenant ;  though 
it  may  bind  the  grantor,  by  way  of  estoppel.  Bartlett  v.  Harlow,  12  Mass.  348;  Var- 
num  v.  Abbot,  Ibid,  474.  Porter  v.  Hill,  9  Mass.  34;  Baldwin  v.  Whiting,  13  Mass. 
57;  Eising  v.  Stannard,  17  Mass.  285.  In  Ohio,  it  has  been  held  otherwise.  See  4 
Kent,  Comm.  368,  and  cases  there  cited.  Infra,  §  30,  note.  And  see  2  Greenl.  on 
Evid.  fj.  318.  [One  tenant  in  common,  by  his  own  deed,  whatever  it  may  purport  to 
convey,  can  have  no  effect  upon  the  title  and  interest  of  his  co-tenant.  Bigelow  v.  Top- 
liff,  25  Vt.  (2  Deanc,)  273.  One  of  two  tenants  in  common  cannot  be  ousted  by  the 
other,  except  by  a  notorious  and  continued  possession,  unequivocally  hostile.  Peck  v. 
Ward,  18  Penn.  State  E.  (6  Harris,)  506;  Small  v.  Clifford,  38  Maine,  (3  Heath,)  213; 
Wass  v.  Buckman,  lb.  356;  Abcrcrombie  v.  Baldwin,  15  Ala.  303.  Where  two  mort- 
gagees are  tenants  in  common,  an  entry  by  one  under  the  purchase  of  the  equity  of 
redemption,  or  under  color  of  a  judgment,  or  otherwise,  would  not  be  an  ouster  of  the 
other,  but  as  between  them  it  enures  for  the  benefit  of  both.  Boot  v.  Stow,  13  Met 
10.  A  mortgage  of  the  whole  estate  by  one  tenant  in  common  is  not  conclusive  evi- 
dence of  an  ouster  of  his  co-tenants.    Wilson  v.  Collishaw.  13  Penn.  State  E.  (1  Harris,* 


874  Title  XX.     Tenancy  in  Common,     s.  16 — 18. 

16.  One  tenant  in  common  received  all  the  rents  for  twenty- 
six  pears.  In  an  ejectment  brought  by  the  other  tenant  in  com- 
mon, for  the  recovery  of  his  moiety,  the  question  was,  whether 
this  possession  of  twenty-six  years  amounted  to  an  expulsion  of 
the  companion  so  as  to  divest  his  estate. 

It  was  said  that  tenants  in  common,  as  well  as  joint  tenants 
and  coparceners,  have  a  joint  possession,  and  the  possession  of 
one  is  the  possession  of  both  ;  that  the  perception  of  the  profits 
did  not  amount  to  an  expulsion.  One  tenant  in  common  might, 
indeed,  disseise  another ;  but  then  it  must  be  done  by  an  actual 
disseisin,  and  not  by  a  bare  perception  of  the  profits  only. 

The  Court  was  of  opinion  that  there  was  no  adverse  possession, 
no  keeping  the  plaintiff  out  of  possession.  One  tenant  in  com- 
mon had  received  the  rent,  and  not  accounted  for  it  to  the  other ; 
but  there  was  no  expulsion,  no  ouster,  (a) 

17.  Notwithstanding  the  principle  established  in  the  preceding 
case,  it  has  since  been  determined  that  thirty-six  years  sole  and 
uninterrupted  possession  by  one  tenant  in  common,  without  any 
account  or  demand  made,  or  claim  set  up  by  his  companion,  was 
a  sufficient  ground  for  a  jury  to  presume  an  actual  ouster  of  the 
co-tenant. 

18.  Upon  a  rule  to  show  cause  why  a  new  trial  should  not  be 

(«)  Fairclaim  v.  Shackleton,  5  Burr.  2604. 

276.  See  Moore  v.  Collishaw,  10  Barr,  224.  One  of  two  tenants  in  common  cannot 
by  the  purchase  of  an  outstanding  title,  or  of  an  incumbrance,  acquire  title  to  the  whole 
as  against  his  co-tenant,  but  such  purchase  will  operate  to  the  benefit  of  both,  and  the 
purchaser  is  entitled  to  claim  contribution  from  his  co-tenant.  Jones  v.  Stanton,  11 
Mis.  433.  See  also  Gray  v.  Bates,  3  Strobh.  Eq.  24 ;  Watkins  v.  Eaton,  30  Maine, 
(17  Shep.)  529.] 

In  some  cases  an  ouster  may  be  presumed  by  the  jury,  from  an  exclusive  and  peace- 
able occupancy  for  a  long  period  of  time.  Thus,  such  presumption  has  been  authorized 
from  an  occupancy  of  about  forty  years;  Jackson  v.  Whitbeck,  6  Cowen,  632;  thirty-six 
years;  Doe  v.  Prosser,  Cowp.  217;  more  than  tiuenty-one  years;  Mehaffy  v.  Dobbs,  9 
Watts,  363  ;  Frederick  v.  Gray,  10  S.  &.  R.  182;  and  twenty  years  and  upwards;  Lloyd 
v.  Gordon,  2  H.  &  McH.  254.  And  see  Chambers  v.  Pleak,  6  Dana,  426  ;  Bolton  v. 
Hamilton,  2  Watts  &  Serg.  294  ;  Watson  v.  Gregg,  10  Watts,  289;  [Cross  v.  Robinson, 
21  Conn.  379  ;  Black  i\  Lindsay,  Busbee,  Law,  (N.  C.)  463  ;  Johnson  v.  Toulmin,  18  Ala. 
50  ;  Gill  v.  Fauntleroy,  8  B.  Mon.  177.  So,  if  a  tenant  in  common  renounces  the  title 
of  his  co-tenant,  and  then  holds  continued  adverse  possession  for  twenty  years,  he 
thereby  acquires  title  to  the  land.     Larman  v.  Huey,  13  B.  Mon.  436.] 

In  an  early  case  in  New  York,  an  exclusive  and  quiet  possession,  for  forty-two  years, 
was  held  to  raise  a  conclusive  presumption  of  law,  of  an  ouster.  Van  Dyck  v.  Van  Beu- 
ren,  1  Caines,  84.  But  this  is  contrary  to  the  current  of  authorities,  the  presumption, 
being  now  regarded  as  a  mere  inference  of  fact.  See  Doe  v.  Prosser,  and  Jackson  v. 
Whitbeck,  supra. 


Title  XX.     Tenancy  in  Common,     s.  18.  875 

granted,  Lord  Mansfield  reported  that  from  the  year  1734,  one 
tenant  in  common  had  been  in  the  sole  possession  of  the  lands, 
without  any  claim  or  demand  by  any  person  or  persons  claiming 
under  the  other  tenant  in  common.  That  no  actual  ouster  was 
proved ;  but,  upon  the  circumstances,  he  had  left  it  to  the  jury 
to  say,  whether  there  was  not  sufficient  evidence  before  them  to 
presume  an  actual  ouster;  and  supposing  there  was  an  actual 
ouster,  in  that  case  the  lessors  of  the  plaintiff  were  barred.  The 
jury  found  there  was  sufficient  evidence  to  presume  an  actual 
ouster. 

After  the  case  had  been  argued,  Lord  Mansfield  said:  —  "  It  is 
very  true  that  I  told  the  jury  they  were  warranted  by  the  length 
of  time  in  this  case,  to  presume  an  adverse  possession  and  ouster 
by  one  of  the  tenants  in  common  of  his  companion  ;  and 
I  am  *  still  of  the  same  opinion.     Some  ambiguity  seems     *404 
to  have  arisen  from  the  term  actual  ouster,  as  if  it  meant 
some  act  accompanied  with  real  force,  and  as  if  a  turning  out  by 
the  shoulders  were  necessary.     But  that  is  not  so.     A  man  may 
come  in  by  rightful  possession  ;  and  yet  hold  over  adversely,  with- 
out a  title.     If  he  does,  such  holding  over,  under  circumstances, 
will  be  equivalent  to  an  actual  ouster.     For  instance,  length  of 
possession  during  a  particular  estate,  as  a  term  for  1000  years,  or 
under  a  lease  for  lives  as  long  as  the  lives  are  in  being,  gives  no 
title;  but  if  tenant  pour  outer  vie  hold  over  for  twenty  years,  after 
the  death  of  cestui  que  vie,  such  holding  over  will  in  ejectment 
be  a  complete  bar  to  the  remainder-man  or  reversioner,  because  it 
was  adverse  to  his  title.     So,  in  the  case  of  tenants  in  common, 
the  possession  of  one  tenant  in  common,  eo  nomine,  as  tenant  in 
common,  can  never  bar  his  companion,  because  such  possession  is 
not  adverse  to  the  right  of  his  companion,  but  in  support  of  their 
common  title  ;  and  by  paying  him  his  share,  he  acknowledges 
him  to  be  co-tenant.     Nor,  indeed,  is  a  refusal  to  pay  of  itself 
sufficient,  without  denying  his  title  ;  but  if,  upon  demand  by  the 
co-tenant  of  his  moiety,  the  other  denies  to  pay,  and  denies  his 
title,  saying  he  claims  the  whole,  and  will  not  pay,  and  con- 
tinues  in    possession,   such   possession   is   adverse,  and   ouster 
enough.     The  question  then  is,  whether  the  possession  in  this 
case,  after  the  particular  estate  ended,  was  a  possession  as  tenant 
in  common  eo  nomine,  or  adverse. 

"  It  is  a  possession  of  near  forty  years,  which  is  more  than 


876  Title  XX.     Tenancy  in  Common,     s.  18 — 20. 

quadruple  the  time  given  by  the  statute  for  tenants  in  common 
to  bring  their  action  of  account,  if  they  think  proper,  namely, 
six  years ;  but  in  this  case  no  evidence  whatsoever  appears  of 
any  account  demanded,  or  of  any  payment  of  rents  and  profits, 
or  of  any  claim  by  the  lessors  of  the  plaintiff,  or  of  any  acknowl- 
edgment of  the  title  in  them,  or  in  those  under  whom  they 
would  now  set  up  a  right ;  therefore,  I  am  clearly  of  opinion,  as 
I  was  at  the  trial,  that  an  undisturbed  and  quiet  possession,  for 
such  a  length  of  time,  is  a  sufficient  ground  for  the  jury  to  pre- 
sume an  actual  ouster,  and  that  they  did  right  in  so  doing." 

The  other  Judges  concurred,  and  the  rule  for  a  new  trial  was 
discharged,  (a) 

19.  It  was  determined,  in  the  following  modern  case, 
405*  that  *  where  one  tenant  in  common  levied  a  fine  of  the 
whole  estate,  and  took  the  rents  and  profits  afterwards, 
without  account,  for  nearly  five  years,  this  was  no  evidence 
whence  a  jury  should  be  directed,  against  the  justice  of  the  case, 
to  find  an  ouster  of  his  companion  at  the  time  of  the  fine  levied, 

20.  Philip  Fincher  being  tenant  for  life,  remainder  to  his  first 
and  other  sons  in  tail,  remainder  to  all  his  daughters  as  tenants 
in  common  in  tail,  (who  afterwards  levied  a  fine,)  died,  leaving 
three  daughters ;  Mary  married  to  Thomas  Hornblower,  Ann 
married  to  Nicholas  Pearsall,  and  Margaret,  who  died  unmarried 
before  her  sister  Mary.  Mrs.  Hornblower,  under  her  marriage 
settlement,  having  a  power  to  dispose  of  her  share,  executed  it 
in  favor  of  the  right  heirs  of  her  husband,  with  a  power  of  revo- 
cation. She  survived  her  husband,  and  died  in  March,  1796. 
The  lessor  of  the  plaintiff  claimed  as  heir  at  law  of  her  husband, 
under  her  appointment.  After  her  death,  N.  Pearsall  and  Ann 
his  wife,  levied  a  fine  of  the  whole  estate  as  of  Easter  term,  1796. 
It  was  understood  before  the  trial,  that  the  defendants  meant  to 
claim  under  a  deed  or  will,  or  both,  of  Mrs.  Hornblower,  exe- 
cuted subsequent  to  the  deed  of  appointment  before  mentioned ; 
in  consequence  of  which  the  plaintiff's  counsel  produced  evi- 
dence by  anticipation,  which  went  decidedly  to  prove  that  at  the 
time,  and  long  before,  when  the  supposed  instrument  bore  date, 
Mrs.  Hornblower  was  insane  ;  whereupon  the  defendant's  coun- 
sel, saying  they  were  not  then  prepared  to  meet  that  case,  stood 

(a)  Doe  v.  Prosser,  Cowp.  217.     Doe  r.  Bird,  11  East,  49. 


Title  XX.     Tenancy  in   Common,     s.  20.  877 

upon  their  title,  derived  from  the  fine,  operating  upon  what  they 
contended  was  an  adverse  possession,  by  Pearsall  and  his  wife, 
of  the  whole  estate,  at  the  time  of  the  fine  levied ;  as  to  which 
it  appeared  in  evidence,  that  since  the  death  of  Mrs.  Hornblower, 
and  till  Pearsall's  death,  the  latter  alone  received  the  whole  rent ; 
and  that  no  rent  was  ever  paid  to  the  lessor  of  the  plaintiff,  and 
no  entry  was  proved  to  be  made  by  him. 

*  The  jury,  under  the  Judge's  direction,  found  a  verdict     *  406 
for  the  plaintiff;  and  leave  was  given  to  the  defendant  to 
enter  a  nonsuit,  if  the  Court  should  be  of  opinion  that  an  entry 
was  necessary  to  avoid  the  fine. 

Lor,d    Kenyon.     The  whole    of  the  defence  is  founded  in  a 
most  unrighteous  and  fraudulent  proceeding ;    and,  in  order  to 
give  effect  to  it,  the  legal  operation  of  the  fine  is  insisted  on ; 
and  it  is  asked,  if  this  were  not  an  adverse  possession  by  Pearsall, 
at  the  time  of  the  fine  levied,  where  the  line  was  to  be  drawn. 
He  said  he  had  no  hesitation  in  saying  where  the  line  of  adverse 
possession  began,  and  where  it  ended.     Primd  facie,  the  posses- 
sion of  one  tenant  in  common  was  that  of  the  other,  and  every 
case  and  dictum  in  the  books  were  to  that  effect.     But  it  might 
be  shown  that  one  of  them  had  been  in  possession,  and  had 
received  the  rents  and  profits  to  his  own  use,  without  account  to 
the  other ;  and  that  the  other  had  acquiesced  in  this  for  such  a 
length  of  time  as  might  induce  a  jury,  under  all  the  circum- 
stances, to  presume  an  actual  ouster  of  his  companion,  and  there 
the  line  of  presumption  ended.     In  the  case  of  Doe  v.  Prosser,(a) 
Lord  Mansfield  rightly  said,  it  was  not  necessary  to  show  actual 
force,  in  order  to  prove  an  ouster,  as  by  turning  a  man  out  by 
the  shoulders ;  but,  as  was  also  observed  by  Mr.  Justice  Aston, 
it  might  be  inferred  from  circumstances,  which  circumstances 
were  matter  of  evidence  to  be  left  to  a  jury.     There,  there  was 
an  undisturbed  and  exclusive  possession  by  one  tenant  in  com- 
mon for  forty  years,  which  the  Court  properly  held  to  be  suffi- 
cient evidence  of  an  ouster,  to  leave  to  a  jury ;  but  no  Judge 
could  think  himself  warranted  in  directing  a  jury  to  make  such 
a  presumption  in  this  case,  in  order  to  work  the  grossest  injus- 
tice, and  in  aid  of  fraud.     What  was  the  case  here  ?     During 
Mrs.  Hornblower's  life,  Pearsall  held  as  tenant  in  common  with 

(a)  Ante,  $  18. 

vol.  i.  74 


878  Title  XX.     Tenancy  in   Common,     s.  20. 

her  ;  he  received  all  the  rent,  but  he  accounted  for  her  propor- 
tion. She  died  in  the  month  of  March,  1796,  the  defend- 
407  *  ants  or  *  Pearsall  having,  as  was  supposed,  procured  from 
her,  at  a  time  when  the  jury  had  found  her  to  be  insane, 
an  instrument  conveying  the  property  to  them.  Then  in  Easter 
term  following,  for  the  purpose  of  securing  the  possession  of  this 
ill-gotten  property,  the  fine  was  levied.  But  Pearsall  had  then 
done  no  act  which  manifested  that  he  held  the  possession  of  the 
whole  adversely ;  the  levying  a  fine  of  the  whole  was  no  ouster 
of  his  companion.  About  a  month  intervened  between  the  death 
of  Mrs.  Hornblower  and  the  levying  of  the  fine.  What  notice 
was  there  to  the  lessor  of  the  plaintiff  at  that  time  that  Pearsall 
had  acted  adversely,  so  that  he  should  be  taken  to  have  acqui- 
esced in  his  title  ?  All  the  cases  mentioned  went  upon  the 
ground  of  acquiescence  in  an  adverse  holding,  in  order  to  pre- 
sume an  ouster.  In  Fairclaim  v.  Shackleton  (a)  there  had  been 
a  perception  of  the  rent  by  one  tenant  in  common  for  twenty-six 
years ;  but  the  title  of  the  other  being  admitted,  no  ouster  was 
presumed.  Without  an  ouster  was  found  by  the  jury,  the  pos- 
session of  one  tenant  in  common  must  be  taken  to  be  the  posses- 
sion of  all.  He  admitted  that  upon  the  principle  of  the  case  of 
Lade  v.  Holford,  (b)  the  jury  might  from  circumstances  presume 
an  ouster ;  and  where  the  fact  was  so  found,  the  legal  conse- 
quences would  ensue  ;  but  no  Judge  would  advise  a  jury  to  make 
the  presumption  in  this  case.  Then,  unless  the  holding  were 
adverse,  there  was  no  occasion  for  an  entry  to  avoid  the  fine. 
Suppose  a  tenant  for  years  levied  a  fine,  no  entry  by  the  land- 
lord would  be  necessary  in  order  to  enable  him  to  maintain  an 
ejectment  at  the  end  of  the  term.  In  Taylor  v.  Horde,  (c)  Lord 
Mansfield  said,  that  in  order  to  advance  justice  he  would  enable 
the  real  owner  in  such  a  case  to  consider  himself  kept  out  by 
wrong  or  not,  at  his  election.  So  a  tenant  in  common  might 
rely  on  the  possession  of  his  co-tenant,  as  his  own,  unless  there 
were  an  actual  ouster  in  fact,  or  the  jury  found  it  from  circum- 
stances ;  but  nothing  of  that  sort  was  here  found  ;  and  therefore 
the  Court  might  consider  the  levying  of  the  fine  as  rightfully  and 
legally  done,  and  intended  to  operate  only  on  that  share  of  the 
premises  to  which  the  defendants  were  lawfully  entitled. 

(a)  Ante,  §  16.    (Hart  v.  Gregg,  10  Watts,  185.    Hall  v.  Matthias,  4  Watts  &  Serg.  331.) 

(b)  Tit.  12,  c.  2.     Tit.  35,  c.  13.  (c)  1  Burr.  111. 


Title  XX.     Tenancy  in  Common,   s.  20—22.  879 

Mr.  Justice  Lawrence  cited  the  case  of  Coppinger  v.  Keating, 
on  a  writ  of  error  from  Ireland,  Mich.  22  Geo.  III.,  where  one  of 
two  brothers,  professing  the  Catholic  religion,  entered,  on 
the  *  death  of  his  elder  brother,  on  the  lands  of  which  *  408 
they  were  tenants  in  common,  in  consequence  of  the 
gavel  act ;  which  enacted  that  the  lands  of  persons  of  that  per- 
suasion should  descend  to  all  the  males,  according  to  the  custom 
of  gavelkind ;  and  held  them  for  several  years  until  his  death  ; 
and  the  Court  determined  that  the  son  of  the  elder  brother  was 
not  barred  by  the  Statute  of  Limitations ;  as  the  uncle  was  ten- 
ant in  common  with  him  under  that  act,  no  actual  ouster  being 
found.     The  rule  for  entering  a  nonsuit  was  discharged,  (a) 

21.  Estates  held  in  common  are  subject  to  curtesy ;  therefore, 
if  a  woman,  tenant  in  fee  or  in  tail  of  a  portion  of  an  estate  held 
in  common  with  another,  marries,  has  issue,  and  dies,  her  hus- 
band will  be  entitled  to  her  portion  of  the  estate  as  tenant  by 
the  curtesy ;  and  the  seisin  of  one  tenant  in  common  will  be 
considered  as  the  seisin  of  the  other,  for  this  purpose. 

22.  A  died,  leaving  a  wife,  a  son,  and  a  daughter.  The  widow 
entered  upon  the  estate,  and  was  seised  as  tenant  in  dower  of 
one  part,  as  tenant  in  common  with  her  son  of  another  part,  and 
of  a  third  as  guardian  in  socage  to  him.  The  son  went  beyond 
sea,  and  died  there  under  age,  whereby  the  daughter  became 
entitled  to  his  share.  She,  during  her  infancy,  married  the  plain- 
tiff; and  together  with  him  applied  to  the  mother  to  be  let  into 
possession  of  the  son's  part,  which  the  mother  refused,  imagining 
the  son  was  still  alive,  and  therefore  insisted  to  hold  the  land  for 
him.  Upon  this  they  filed  a  bill  in  Chancery  for  an  account, 
which  was  accordingly  directed.  After  this  the  daughter  died ; 
and  upon  further  application  to  the  Court  by  the  husband,  one 
question  was  whether  the  seisin  of  the  mother,  after  the  son's 
death,  being  tenant  in  common  with  the  daughter,  was  the  seisin 
of  the  daughter  sufficient  to  make  the  husband  tenant  by  the 
curtesy  of  her  part. 

The  Court  held  it  was  sufficient ;  for  the  entry  and  possession 
of  one  tenant  in  common  was  the  entry  and  possession  of  the 
other ;  accordingly  it  was  decreed  for  the  plaintiff.  And  it  was 
said  that  where  one  entered  claiming  the  whole  for  himself,  in 
exclusion  of  his  companion,  this  might  not  serve  as  the  entry  of 

in)  Peaceable  v.  Read,  1  East,  R.  668.     Doe  v.  Elliot,  1  15.  &  AM.  85. 


880  Title  XX.     Tenancy  in  Common,    s.  22—26. 

his  companion,  being  made  directly  against  him  ;  but  that  was 

not  this  case.  For  it  appeared  that  the  mother's  keeping  pos- 
session of  the  whole  against  her  daughter  and  her  hus- 

409  *  band  was  *  entirely  owing  to  a  mistake,  in  imagining  her 
son  was  still  living,  not  with  an  intent  to  exclude  the 

daughter  from  her  right ;  therefore  no  inference  could  be  drawn 

from  it.  (a) 

23.  Estates  held  in  common  are  also  subject  to  dower,  so  that 
the  widow  of  a  tenant  in  common  will  be  entitled  to  one  third 
of  her  husband's  portion. 

24.  Thus  where,  in  a  writ  of  dower  by  a  widow  against  the 
heir  of  her  husband,  the  tenant  pleaded  that  A  was  seised,  and 
devised  the  tenements  to  the  husband,  and  two  more  equally  to 
be  divided ;  by  which  they  were  tenants  in  common ;  and  so 
demands  judgment  of  the  writ,  supposing  that  the  widow  could 
not  sue  dower,  before  partition,  against  tenants  in  common.  But, 
upon  demurrer,  it  was  adjudged  that  the  writ  will  lay.  (b) 

25.  In  a  case  of  this  kind,  dower  must  be  assigned  in  com- 
mon ;  for  the  widow  cannot  have  it  otherwise  than  her  husband 
had  it.  (c) 1 

26.  [It  is  sometimes  doubtful  whether  the  real  estate  of  part- 
ners, purchased  out  of  their  partnership  property,  will  be  subject 
to  the  dower  of  the  partners'  wives.2 

Where  it  is  conveyed  to  them  as  tenants  in  common,  and  there 
is  no  agreement  among  them  which  will  impress  the  real  estate 
with  the  character  of  personalty,  there  seems  to  be  no  reason  why 

(a)  Sterling  v.  Penlington,  14  Vin.  Ab.  511.  {b)  Sutton  v.  Rolfe,  3  Lev.  84. 

(c)  1  Inst.  34,  b.  37,  b. 

1  But  if  partition  has  been  made,  either  by  the  husband  in  his  lifetime,  or  by  pro- 
cess of  law  before  or  after  his  decease,  the  ■widow  is  bound  by  it,  wherever  it  would 
have  bound  the  husband,  and  must  take  her  dower  in  the  part  set  [off  as  his  share- 
Potter  v.  Wheeler,  13  Mass.  501. 

2  On  this  point,  see  ante,  Vol.  I.  tit.  6,  ch.  2,  §  15,  16;  where  it  is  shown  that  the 
land  has,  in  equity,  all  the  attributes  of  personal  estate,  until  the  debts  of  the  partner- 
ship are  paid,  and  its  purposes  are  accomplished;  subject  to  which,  the  wife  is  entitled 
to  her  dower.  See  also  Collyer  on  Partnership,  by  Perkins,  §  133,  135,  154 — 156,  with 
the  notes  of  the  learned  editor.  Whether  the  wife  may  compel  the  surviving  partner 
first  to  exhaust  the  personalty,  in  payment  of  the  partnership  debts,  qnare;  and  see 
Thornton  v.  Dixon,  3  Bro.  C.  C.  199,  by  Belt,  and  note ;  Ripley  v.  Waterworth,  7  Ves. 
425—452  ;  Bell  v.  Phyn,  9  Ves.  453;  Balmain  v.  Shore,  9  Ves.  500;  Stewart  v.  Bute, 
11  Ves.  666  ;  Selkrigg  v.  Davies,  2  Dow,  242 ;  Crawshay  v.  Maule,  1  Swanst.  495,  508, 
521  ;  Smith  v.  Smith,  9  Ves.  189;  1  Mont.  Partn.  App.  97;  1  Roper,  Husb.  and  Wife, 
346,  note,  2d  ed. 


Title  XX.     Tenancy  in  Common,     s.  26—29.  SSI 

dower  should  not  attach.  So,  if  the  whole  of  the  real  estate  were 
conveyed  to  one  or  more  of  them  in  trust  for  themselves  and  the 
other  partners,  in  the  absence  of  any  such  agreement,  the  share 
of  the  partners  to  whom  the  conveyance  was  made,  would,  in 
like  manner,  be  subject  to  dower.  But  where  there  is  such  an 
agreement  between  the  partners,  as,  for  instance,  that,  on  disso- 
lution of  the  partnership,  the  land  shall  be  sold,  it  has  been  held 
that  such  agreement  converts  the  land  into  personalty,  f 

27.  In  the  absence  of  any  agreement  having  the  above  effect, 
it  appears  doubtful  whether  the  mere  circumstance  that  the  land 
was  bought  for  the  purposes  of  the  partnership,  will  alone  con- 
vert it,  as  between  the  representatives  of  a  partner.  $ 

*Lord  Erskine,  in  Stuart  v.  The  Marquis  of  Bute,  (a)     *410 
said  that  the  difficulty  of  distinguishing  and  arranging  the 
partnership  property  of  different  natures,  partly  real  and  partly 
personal,  had  never,  except  by  the  effect  of  the  contract  or  the 
will,  been  held  sufficient  against  the  heir. 

But  in  Selkrigg  v.  Davies,  (b)  Lord  Eldon,  C,  is  reported  to 
have  said  :  "  My  own  individual  opinion  is,  that  all  property  in- 
volved in  a  partnership  concern,  ought  to  be  considered  personal 
estate  ;  "  and  in  the  case  of  Townshend  v.  Devaynes,  30th  June, 
1812,  he  decided  against  the  heir.  In  Crawshay  v.  Maule,  (c) 
his  Lordship  appears  to  consider  the  subject  as  doubtful.  § 

28.  It  may  be  deduced  from  the  cases  above  cited,  that  the 
real  estate  purchased  with  the  joint  effects  of  the  partnership,  will, 
as  behoeen  the  partners,  be  considered  personal  estate ;  and  it  has 
been  inferred  that  real  estate  would,  with  other  joint  property,  be 
primarily  liable  to  the  payment  of  the  joint  partnership  debts,  as 
between  the  representatives ;  and  that  if  the  heir  or  widow  of  a 
partner  be  entitled,  their  right  can  attach  only  on  the  surplus.  || 

29.  Where  real  estate  was  purchased  out  of  the  partnership 
effects,  and,  by  the  agreement  of  the  partners,  was  to  be  the 

(a)  11  Ves.  666.  (6)  2  Dow,  242. 

(c)  1  Swan.  508,  521.    Montagu  on  Partn.  vol.  1,  App.  p.  07. 

t  [Thornton  v.  Dixon,  3  Bro.  C.  C.  199,  by  Belt,  and  note;  Ripley  v.  Waterworth. 
7  Ves.  425—452.] 

t  [Thornton  v.  Dixon,  ubi  sup. ;  Bell  v.  Phyn,  7  Ves.  453  ;  Balraain  v.  Shoro,  9  Ves. 
500.] 

^   [Roper's  Husband  and  Wife,  2d  ed.  34G,  and  note.] 

II  [Ibid.] 

74* 


882  Title  XX.     Tenancy  in  Common,    s.  29 — 30. 

separate  property  of  one  of  them,  to  whom  it  was  conveyed,  he 
being  considered  the  debtor  to  the  partnership  for  the  purchase- 
money,  the  wife  was  held  entitled  to  dower  out  of  the  whole.]  (a) 
30.  A  tenancy  in  common  may  be  destroyed  by  a  voluntary 
partition  of  the  several  shares,1  which  might  formerly  have  been 
done  without  deed;  provided  it  was  executed  in  severalty  by 
livery  of  seisin.  In  consequence  of  the  Statute  of  Frauds,  29 
Cha.  II.  c.  3,  no  legal  partition  can  now  be  made  between  ten- 
ants in  common  ivithout  deed.  But  an  agreement  in  writing  to 
make  partition  will  have  the  same  effect,  in  equity,  as  an  actual 
partition  at  law.  (b) 

(a)  Smith  v.  Smith,  5*Ves.  189.  (b)  1  Inst.  169,  a. 


1  An  alienation  by  one  joint  tenant  or  tenant  in  common,  of  all  his  interest  in  a  par- 
ticular part  of  the  land,  by  metes  and  bounds,  whether  it  be  by  deed  or  by  the  levy  of 
an  execution  against  him,  is  void,  as  against  his  .co-tenants  ;  though  it  may  operate  by 
way  of  estoppel  against  the  grantor  by  deed,  or  the  judgment  creditor,  or  party  claim- 
ing under  the  execution.  Bartlett  v.  Harlow,  12  Mass.  349;  Staniford  v.  Fullerton,  6 
Shepl.  229  ;  Mitchell  v.  Hazen,  4  Conn.  509,  510 ;  Porter  v.  Hill,  9  Mass.  34 ;  Jeflers 
v.  Radcliff,  10  N.  Hamp.  242;  Jewett  v.  Stockton,  3  Yerg.  492  ;  Griswold  v.  Johnson, 
5  Conn.  363  :  [Great  Falls  Co.  v.  Worcester,  15  N.  H.  412  ;  Soutter  v.  Porter,  27  Maine, 
(14  Shep.)  405.  But  such  deed  is  voidable  only  by  the  co-tenants:  it  is  good  and 
effectual  against  all  the  world  beside.  Dall  v.  Brown,  5  Cush.  289.]  But  in  Ohio,  it 
has  been  held  that  one  tenant  in  common  might  lawfully  convey  his  interest  in  a  part 
of  the  land  specifically  described.  White  v.  Sayre,  2  Ohio  R.  110;  Prentiss's  case,  7 
Ohio  R.  129.  But  see  Walk.  Introd.  p.  293,  294  ;  4  Kent,  Comm.  368.  In  Maryland, 
also,  it  has  been  so  held ;  but  only  by  the  operation  of  the  Statute  of  Descents  in  that 
State.  Smith  v.  Reinecker,  2  H.  &  J.  421.  But  see  Carroll  v.  Norwood,  1  H.  &  J.  100. 
[In  a  conveyance  by  one  tenant  in  common  of  his  estate  in  the  land  held  in  common, 
a  reservation  of  his  interest  in  the  mines  in  and  upon  the  land  granted,  is  void.  Adam 
v.  Briggs  Iron  Co.  7  Cush.  361.  A  release  to  a  tenant  in  common  from  his  co-tenants, 
of  their  interest  in  a  specific  part  of  the  land  held  in  common,  confirms  a  conveyance 
previously  made  by  him  of  that  part  of  the  land.  Johnson  v.  Stevens,  7  Cush.  431. 
See  also  Norris  v.  Hill,  1  Mann,  (Mich.)  202.  Persons  owning  lands  as  tenants  in 
common,  were  incorporated  for  the  purpose  of  selling  the  lands  held  in  common,  and 
the  charter  was  accepted.  The  title  to  the  lands  was  held  to  be  thereby  vested  in  the 
corporation,  and  that  the  corporation  alone,  and  not  any  of  the  original  co-tenants, 
could  maintain  actions  for  injuries  to  the  lands,  or  breaches  of  agreements  with  the 
corporation.     Colquitt  v.  Howard,  11  Geo.  556. 

Two  tenants  in  common  made  partition  of  their  land.  The  one  granted  to  the  other 
"  free  liberty  of  carrying  away  gravel  and  sea-weed,  off  the  beach  belonging  to  his  part 
of  said  farm,  and  also  stones  below  high-water  mark,  and  liberty  to  tip  the  sea-weed  on 
the  bank  of  his  part  of  said  farm."  It  was  held  that  this  grant  created  a  right  of  com- 
mon appurtenant  to  the  land  of  the  grantee,  but  a  right  in  common  with  the  grantor, 
and  one  restricted  in  its  extent;  and  also  that  a  right  of  way  to  and  from  the  shore, 
passed  as  an  incident  to  the  common  granted,  and  that  both  the  right  of  way  and  the 
right  of  common  would  pass  in  a  conveyance  of  the  land  under  the  general  name  of 
appurtenances.    Hall  v.  Lawrence,  2  R.  I.  218.    See  Bowen  v.  Conner,  6  Cush.  132.] 


Title  XX.     Tenancy  in  Common,     s.  31 — 34.  883 

31.  Tenants  in  common  were  compellable  to  sever  their  estates 
by  writ  of  partition  under  the  statutes  31  &  32  Hen.  VIIL,  and 
8  &  9  Will.  III.  c.  31,  which  have  been  already  stated,  (a)  f 

*  32.  In  a  writ  of  partition,  a  rule  to  show  cause  was  *  411 
granted,  and  afterwards  made  absolute,  on  affidavit  of  ser- 
vice, for  the  Court  to  proceed  to  examine  the  title  of  the  defend- 
ant ;  process  having  been  duly  returned,  the  declaration  entered, 
and  no  appearance  entered  by  the  tenant  within  ten  days.  The 
Court,  on  making  the  rule  absolute,  appointed  to  proceed  on  the 
examination  in  open  court  on  the  next  day.  Accordingly,  Serj. 
Walker,  for  the  demandant,  opened  his  title,  of  which  abstracts 
had  previously  been  left  with  the  Judges  ;  it  fortunately  proved 
not  to  be  very  intricate.  The  several  seisins,  descents,  devises, 
and  conveyances,  were  proved  by  affidavits.  The  deeds  and 
wills  were  produced  and  read ;  and  no  counsel  appearing  for  the 
tenant,  the  Earl  of  Thanet,  judgment  on  his  default  was  given 
for  the  demandant,  to  hold  in  severalty  the  premises  demanded 
in  his  count ;  in  some  of  which  he  was  seised  of  two  undivided 
third  parts,  and  in  others  of  a  moiety  only,  in  common  with 
Lord  Thanet.     A  writ  of  partition  was  awarded,  (b) 

33.  In  a  subsequent  term,  the  sheriff  returned  that  he  had  exe- 
cuted the  same,  in  the  presence  of  persons  who  attended  for  the 
plaintiff  and  defended  respectively ;  and  specified  in  his  return 
the  several  parcels,  with  their  metes  and  boundaries :  hereupon 
Walker,  for  the  plaintiff,  moved  for  final  judgment,  quod  partitio 
sit  stabilis ;  the  rule  for  which  was  made  absolute  the  last  day 
of  the  term,  on  affidavit  of  notice  to  the  defendant  and  tenants 
in  possession.  J 

34.  Partitions  of  estates  held  in  common  are  now  usually 
made  by  a  commission  out  of  Chancery,  in  the  same  manner  as 
partitions  of  joint  tenancies:  but  in  such  case  it  is  not  necessary 
that  every  part  of  the  estate  should  be  divided ;  for  it  will  be 
sufficient  if  each  tenant  in  common  have  an  equal  share  of  the 
whole,  (c) 1 

(a)  Tit.  18,  c.  2,  §  30,  41,  and  note.  (b)  Halton  v.  Thanet,  2  Black.  R.  1134—1159. 

(c)  Tit.  18,  c.  2,  §  42. 

t  [But  that  writ  is  abolished  from  the  1st  day  of  June,  1835.] 

I  [It  has  been  lately  held,  that  the  statute  8  &  9  Wm.  3,  c.  31.  applies  only  to  those 
cases  where  the  tenant  does  not  appear.     Dyer  v.  Bullock,  1  Bos.  &  Pul.  344.] 

1  For  the  jurisdiction  of  Partition  in  Chancery,  and  the  manner  of  its  exercise,  sec 
1  Story  on  Eq.  Jurisp.  ch.  14,  $  64G— 658;  Allnatt  on  Partition,  ch.  4. 


884  Title  XX.     Tenancy  in  Common,    s.  35 — 37. 

35.  A  partition  was  decreed  of  an  estate,  which  consisted, 
among  other  things,  of  a  great  house  and  park.  The  defendant 
insisted  to  have  one  third  of  the  house,  and  also  a  third  of  the 
park,  assigned  to  him  by  the  commissioners,  who  were  to  make 

the  partition.  It  was  urged  for  him,  that  as  he  was  en- 
412  *     titled  *  to  a  third  of  the  whole,  so  consequently  he  was  to 

have  a  third  of  the  house  and  park ;  and  in  many  cases 
in  the  law,  things  entire  in  their  nature,  as  a  house,  a  mill,  or  an 
advowson,  might  be  divided.  So  a  tenant  in  common  should 
have  half  the  house,  every  other  toll  dish,  and  every  other  turn 
of  the  church,  &c.  That  thus  it  would  be  at  law  in  case  of  a 
writ  of  partition,  and  equity  followed  the  law. 

Lord  Parker  said :  —  Care  must  be  taken  that  the  defendant 
should  have  one  third  part  in  value  of  the  estate  ;  but  there  was 
no  color  of  reason  that  any  part  of  the  estate  should  be  lessened 
in  value,  in  order  that  the  defendant  should  have  one  third  of  it. 
Now  if  the  defendant  should  have  one  third  of  the  house  and 
park,  this  would  very  much  lessen  the  value  of  both.  If  there 
were  three  houses  of  different  value  to  be  divided  among  three, 
it  would  not  be  right  to  divide  every  house,  for  that  would  be  to 
spoil  every  house.  But  some  recompense  was  to  be  made,  either 
by  sum  of  money  or  rent  for  owelty  of  partition,  to  those  who 
had  the  houses  of  less  value.  It  was  true,  if  there  were  but  one 
house  or  mill,  or  advowson,  to  be  divided,  then  that  entire  thing 
must  be  divided  in  manner  as  the  other  side  contended ;  secus, 
when  there  were  other  lands,  which  might  make  up  the  defend- 
ant's share.  Therefore,  since  the  plaintiff  and  his  wife  had  two 
thirds,  he  recommended  that  the  house  and  park  should  be 
allowed  to  them  ;  and  that  a  liberal  allowance  out  of  the  rest  of 
the  estate  should  be  made  to  the  defendant  in  lieu  of  his  share 
of  the  house  and  park,  (a) 

36.  Where  an  infant  is  tenant  in  common  with  an  adult,  and 
a  partition  of  the  estate  is  directed  by  the  Court  of  Chancery ; 
the  conveyance  to  be  made  in  pursuance  of  the  commission  will 
be  respited,  till  the  infant  comes  of  age. 

37.  Sir  George  Strode  devised  divers  manors,  &c.  to  trustees 
and  their  heirs,  in  trust  for  his  two  granddaughters,  Lady  Hert- 
ford and  Lady  Brook.  On  a  bill  for  a  partition,  Lord  King  said : 
"  Decree  a  partition,  and  for  that  purpose  let  a  commission  issue 

(a)  Clarendon  v.  Hornby,  1  P.  Wins.  446. 


Title  XX.     Tenancy  in  Common,    s.  37 — 38.  885 

to  allot  one  moiety  in  severalty  to  the  plaintiff,  the  Lord  Brook, 
and  the  other  moiety  in  severalty  to  Lady  Hertford,  to  hold  to 
them  according  to  their  respective  estates,  which  they  are  entitled 
to  under  the  will ;  and  let  the  plaintiff  and  the  defendant, 
the  Lady  Hertford,  be  respectively  quieted  *  in  the  pos-  *  413 
session  of  the  premises  severally  to  be  allotted  as  afore- 
said ;  but  forasmuch  as  the  infant  plaintiff  cannot  join  in  a  con- 
veyance of  the  moiety  to  the  Lady  Hertford,  so  that  there 
cannot  be  mutual  conveyances,  let  the  conveyances  to  be  made 
by  the  trustees  of  the  legal  estate  be  respited,  until  the  infant 
plaintiff  comes  to  twenty-one,  or  further  order  of  the  Court ; 
at  which  time  all  parties  interested  may  join  in  mutual  convey- 
ances." (a) 

38.  On  a  bill  by  a  tenant  in  common  for  a  partition  against  a 
tenant  for  life,  and  an  infant  tenant  in  tail  in  remainder  of  the 
other  moiety  ;  the  usual  decree  for  partition  to  hold  and  enjoy  in 
severalty,  and  for  mutual  conveyances,  was  made.  But  day  was 
given  to  the  infant,  till  after  he  came  of  age,  to  show  cause 
against  the  decree.  On  a  motion  made  by  the  plaintiff  to  respite 
the  execution  of  the  conveyance  till  the  infant  came  of  age  ;  the 
question  was,  whether  the  plaintiff  was  obliged  to  convey  till  the 
infant  came  of  age ;  because  he  could  not  have  a  conveyance 
from  him  till  that  time. 

Sir  J.  Strange,  M.  R.,  was  of  opinion,  that  the  conveyance  by 
the  plaintiff  ought  to  be  made  immediately,  according  to  the  de- 
cree ;  and  took  a  distinction  between  this  case  and  that  of  Brook 
v.  Hertford.  In  that  case  the  bill  for  partition  was  brought  by 
the  infant ;  in  this,  it  was  by  an  adult,  against  an  infant :  but 
at  the  importunity  of  counsel,  leave  was  given  to  move  it  again 
before  Lord  Hardwicke,  who  declared  his  opinion  that  the  con- 
veyance ought  to  be  mutual,  not  only  as  to  the  thing,  but  also 
in  point  of  time.  He  said  that  the  case  Brook  v.  Hertford,  (b) 
though  different  in  some  circumstances,  was  a  considerable 
authority ;  and  ordered  the  conveyance  by  the  plaintiff  to  be 
respited,  (c)  f 

(a)  Brook  v.  Hertford,  2  P.  Wms.  518.    See,  also,  1  Mad.  214.  (b)  Ante,  §  37. 

(c)  Tuckfield  v.  Duller,  Amb.  197.     Baring  v.  Nash,  1  Ves.  &  B.  551. 


t  [By  the  statute  41  Geo.  3,  c.  109,  §  16,  it  is  enacted,  that  it  shall  be  lawful  for  the 
commissioners  in  inclosure  acts,  upon  the  request  in  writing  of  any  joint  tenants,  co- 
parceners, or  tenants  in  common,  or  any  or  either  of  them,  or  of  the  husbands,  guar- 


886  Title  XX.     Tenancy  in  Common,    s.  39. 

39.  The  last  manner  in  which  estates  in  common  may  be 
dissolved  is,  by  uniting-  all  the  titles  in  one  te?iant,  by  purchase 
or  otherwise  ;  which  brings  the  whole  to  one  estate  in  severalty-! 


dians,  trustees,  committees,  or  attorneys  of  such  as  are  under  coverture,  minors,  lunatics, 
or  under  any  other  incapacity,  or  absent  beyond  seas,  to  make  partition  and  division  of 
the  estates  and  allotments,  to  such  of  the  said  owners  or  proprietors  who  shall  be  enti- 
tled to  the  same  as  joint  tenants,  coparceners,  or  tenants  in  common ;  and  to  allot  the 
same  accordingly,  in  severalty.] 

t  [The  statute  of  1  Will.  4,  c.  65,  which  relates  to  property  belonging  to  infants  and 
lunatics  beneficially,  authorizes  (§  27,)  the  completion  of  a  contract  to  make  partition 
entered  into  by  a  person  subsequently  becoming  lunatic ;  but  it  does  not  seem  to  au- 
thorize guardians  on  behalf  of  an  infant  to  make  partition.] 


Note. — In  the  United  States,  partition  may  be  made  by  deed,  as  at  common  law. 
There  are  also  five  other,  modes  in  which  partition  may  be  effected. 

The  first,  is  where  real  estate  is  owned  by  several  proprietors,  who  are  empowered 
by  statutes,  under  a  warrant  from  a  justice  of  the  peace,  to  organize  themselves  as  a 
corporation,  for  the  better  management  of  their  property,  by  votes  of  the  majority.  Par- 
tition made  by  such  votes,  in  due  form,  and  recorded  in  their  book  of  records,  is  held 
binding  and  conclusive  on  all  the  proprietors,  without  deed  or  other  act.  This  method 
is  practised  chiefly  in  the  division  of  townships ;  and  is  used,  substantially  in  the  same 
manner,  in  the  States  of  Maine,  Massachusetts,  New  Hampshire,  and  Rhode  Island.  See 
Maine,  Rev.  St.  1840,  ch.  85  ;  Mass.  Eev.  St.  ch.  43  ;  Adams  v.  Frothingham,  3  Mass. 
352;  Folger  v.  Mitchell,  3  Pick.  396;  N.  Hamp.  Eev.  St.  1842,  ch.  143;  Coburn  v. 
Ellenwood,  4  N.  Hamp.  E.  99  ;  E.  Island,  Eev.  St.  1844,  p.  474. 

The  second  method  is  by  the  writ  de  partitionefacienda,  at  common  law;  the  proceed- 
ings under  it  being  modified,  in  some  of  the  States,  by  statutes.  This  process  lies 
in  many  of  the  States,  concurrently  with  other  methods  of  partition,  and  in  some  of 
them  it  is  the  only  mode  resorted  to.  See  Maine,  Eev.  St.  1840,  ch.  121  ;  Massachu- 
setts, Eev.  St.  ch.  103;  Rhode  Island,  Eev.  St.  1844,  p.  192—196  ;  Connecticut,  Eev.  St. 
1838,  p.  392  ;  LL.  New  Jersey,  Elm.  Dig.  p.  385;  Dunlop,  Dig.  LL.  Pennsylvania,  ch. 
33,  §  22,  p.  41  ;  Ziegler  v.  Grim,  6  Watts,  106  ;  Delaware,  Eev.  St.  1829,  p.  166  ;  Tate's 
Dig.  LL.  Virginia,  p.  723  ;  Maryland,  Lloyd  v.  Gordon,  2  Har.  &  McHen.  254  ;  LL. 
South  Carolina,  Vol.  VII.  p.  294  ;  Witherspoon  v.  Dunlap,  1  McCord,  546  :  Indiana, 
Eev.  St.  1843,  ch.  45,  art.  4. 

The  third  method  is  by  petition,  preferred  in  the  Courts  designated  by  the  stat- 
utes which  provide  this  mode  of  proceeding.  And  it  seems  to  have  been  provided 
to  obviate  the  inconveniences  of  the  writ  at  common  law,  on  the  one  hand,  and  of 
the  bill  in  chancery,  on  the  other.  The  proceedings  are  in  general  brief,  direct, 
and  rather  summary  in  their  character  ;  and  apply  generally  to  cases  where  some 
of  the  parties  are  infants,  femes  covert,  absent  from  the  State,  or  unknown,  as  well 
as  to  cases  where  the  parties  are  present  and  capable  to  act.  This  method  pre- 
vails in  a  large  majority  of  the  States,  and  is  the  one  most  usually  resorted  to  ; 
but  it  is  not  ordinarily  deemed  exclusive  of  other  lawful  modes  of  partition,  unless 
when  made  so  by  statute.  It  is  provided  for  by  the  statutes  of  Maine,  Eev.  St. 
1840,  ch.  121,  and  ch.  108;  Massachusetts,  Eev.  St.  ch.  103;  New  Hampshire,  Eev. 
St.  1842,  ch.  206;  [Pickering  v.  Pickering,  1  Foster,  N.  H.  537.]  Vermont,  Eev.  St. 
1839,  ch.40,  53;  New  York,  Eev.  St.  Vol.  II.  p.  412,  3d  ed. ;  lb.  p.  318;  New  Jersey, 
Elm.  Dig.  p.  379,  382 ;  North  Carolina,  Eev.  St.  ch.85,  Vol.  I.  p.  450;   Georgia,  Eev.  St. 


Note.  887 

1845,  p.  414,  §  48;  Michigan,  Rev.  St.  1837,  p.  4S2,  487.  488;  Kentucky,  Rev.  St.  1834, 
Vol.  II.  p.  1066—1071  ;  Ohio,  "Walk.  Introd.  p.  291,  603,  613  ;  Tennessee,  Stat.  1787,  ch. 
17-  Stat.  1835,  ch.  20,  Car.  &  Nich.  Dig.  p.  514,  230;  Indiana,  Rev.  St.  1843,  ch.  45, 
art.  4 ;  Illinois,  Rev.  Stat.  1839,  p.  254,  255,  514,  515 ;  Missouri,  Rev.  St.  1845,  ch.  128  ; 
Mississippi,  Rev.  St.  1840,  ch.  34,  §  48,  p.  353  ;  Ibid.  ch.  36,  §  13,  14,  p.  471  ;  Alabama, 
Rev.  St.  1823,  by  Toulmin,  p.  239,  240,  339;  Ibid.  p.  333;  Arkansas,  Rev.  St.  1837, 
ch.  107. 

The  fourth  method  is  by  bill  in  chancery,  according  to  the  usual  course  of  proceedings 
in  equity.  This  mode  of  remedy  is  supposed  to  be  open  in  all  the  States  where  a  gen- 
eral chancery  jurisdiction  exists  ;  at  least  in  cases  not  provided  for  by  statutes,  or  not 
susceptible  of  a  sufficient  and  perfect  remedy  in  other  tribunals.  In  some  States,  the 
Court  of  Chancery  is  named  in  the  statutes,  among  the  other  Courts,  in  which  the 
remedy  by  petition  may  be  had ;  but  whether  this  excludes  the  general  jurisdiction  of 
those  Courts  over  matters  of  partition,  is  not  known  to  have  been  decided.  See  Dela- 
ware, Rev.  St.  1829,  p.  168;  North  Carolina,  Rev.  St.  1837,  Vol.  I.,  ch.  85.  In  New 
York,  Rev.  St.  Vol.  II.,  p.  423,  424,  both  modes  of  remedy,  by  petition  and  by  bill  are 
expressly  recognized,  as  open  to  parties  in  Chancery.  In  Massachusetts  and  New  Hamp- 
shire,  where  the  Supreme  Court  has  only  a  limited  jurisdiction  in  equity,  but  it  is  ex- 
pressly given  in  all  cases  between  joint  tenants  and  tenants  in  common,  probably  a  bill 
in  chancery  for  partition  might,  in  proper  cases,  be  sustained. 

The  fifth  method  of  partition  is  in  general  restricted  to  the  estates  of  deceased  persons, 
in  the  hands  of  Mrs  or  devisees,  all  claiming  under  the  same  title,  and  whose  rights  as 
heirs  or  devisees,  are  not  in  controversy.     The  cognizance  of  partition  among  these  is, 
in  many  of  the  States,  given  to  the  Judge  of  Probate,   Surrogate,  Orphans'   Court,   or 
other  tribunal  in  which  the  estate  is  settled  in  a  course  of  distribution,   as  a   natural 
head  of  the  jurisdiction  of  such  Courts.    In  some  instances,  the  statutes  direct  that  the 
parties  apply  by  petition ;  in  which  case  the  course  of  proceeding  is  identical  with  that 
by  petition  in   other  Courts,  in  the  third  method  above  stated.    But  as  the  Courts  here 
described,  proceed  according  to  the  course  of  Ecclesiastical  Courts  in  England,  in  the  ex- 
ercise of  their  jurisdiction  in  cases  not  otherwise  provided  for,  nor  accustomed,  it   is 
conceived  that,  where  the  mode  of  proceeding  in  partition  is  not  indicated  by  statute, 
nor  otherwise  regulated,  it  may  in  some  degree  be  governed  by  the  rules  of  the  Ecclesi- 
astical Courts,  at  least  so  far  as  concerns  the  bill  or  libel  and  the  answer;  and  therefore 
it  may  with  propriety  be  ranked  as  a  distinct  mode  of  partition.     This  method  is  used  in 
the  States  of  Maine,  Massachusetts,  New  Hampshire,  Vermont,  Rhode  Island,  Connecticut, 
New  York  New  Jersey,  Pennsylvania,  Delaivare,  Maryland,  South  Carolina,  Michigan,  Mis- 
sissippi and  Alabama.     Seethe  statutes  of  those  States,  cited  under  the  third  method 
supra   '  See  also,  Rhode  Island,  Rev.  St.  1844,  p.  240;  Connecticut,  Rev.  St.   1838,  p. 
234  •  Pennsylvania,  Dunl.  Dig.  ch.  375,  §  36,  p.  472  ;  Delaware,  Rev.  St.   1829,  p.  318  ; 
Maryland,  Stat.  1820,  ch.191 ;  LL.  South  Carolina,  Vol.  VI.,  p.  248  ;  Vol.  VII.,  p.  246. 
Generally  speaking,  no  process  for  partition  lies  by  the  common  law,  except  for  a 
party  who  is  in  possession  of  the  freehold.     It  does  not  lie  for  a  disseisee ;  nor  for  a  re- 
mainder-man or    reversioner  during  a  previous  life-estate.     1    Inst.  167,  a     But  m 
Maine,  it  is  expressly  given  to  persons  having  only  a  right  of  entry ;  and  perhaps  the 
same  may  be  inferred  from  the  statutes  of  North  Carolina  and  Tennessee,  which  give  the 
process  to  every  person  "  claiming  "  an  estate  in  common.     In  Missouri,  also,  it  is  given 
to  every  person  interested,  whether  in  possession  or  expectancy.     [This   process   does 
not  lie  where  the  petitioner  is  seised  of  one  moiety  in  his  own  right,  and  together  with 
the  respondents  as  joint  trustees  with  himself  of  the  other  moiety,  m  trust  for  a   lurd 
party.     Winthrop  t.  Minot,  9   Cush.  405.     It  lies   for  one  having  a  present  right  of 
iTj     Barnard,  Pope,  14  Mas,  434;    Marshall  ,.  Crehore,  13  Met.  462  ;    Wood iv 
LeBaron,  8  Cush.  471;  Tabler  v.  Wiseman,  2  Ohio,  N.  S.  207.   But  not  for  a  tenant  in 


888  Note. 

common  of  a  reversion  in  land  expectant  on  a  lease  for  years.  Hunnewell  v.  Taylor, '6 
Cush.  472.  A  tenant  by  the  curtesy  initiate  may  have  a  bill  for  partition.  Riker  v. 
Darke,  4  Edw.  ch.  668.] 

The  statute  of  31  Hen.  VIII.  ch.  1,  which  gave  the  writ  of  partition  to  joint  tenants 
and  tenants  in  common,  gave  it  only  to  those  who  were  seised  of  estates  of  inheritance. 
The  statute  of  32  Hen.  VIII.  ch.  32,  extended  it  still  further,  to  tenants  for  life  or  years, 
holding  with  others  having  estates  of  inheritance.  To  what  extent  this  latter  statute 
has  been  adopted  in  the  United  States,  is  not  certainly  known  ;  but  in  the  absence  of 
any  evidence  to  the  contrary,  it  may  be  presumed  to  have  been  adopted  here,  as  part  of 
our  common  law. 

The  language  of  the  statutes  of  most  of  the  States,  providing  the  process  in  partition, 
is  broad  enough  to  include  tenants  for  years,  as  well  as  others,  among  the  persons  en- 
titled to  compulsory  partition ;  but  in  Georgia,  as  the  statute  speaks  only  of  persons 
"seised"  it  would  seem  to  be  restricted  to  tenants  of  the  freehold.  In  Massachusetts, 
this  remedy  is  given  to  tenants  for  a  term  of  years,  whereof  twenty  years  at  least  re- 
main unexpired,  against  those  holding  a  greater  estate  ;  and  to  all  other  tenants  for 
years,  inter  sese.    And  see  Wells  v.  Prince,  9  Mass.  508. 

Though  a  partition  by  parol  is  void,  as  to  the  title,  yet  a  right  to  a  several  occu- 
pancy may  be  created  by  parol,  so  far,  at  least,  as  to  give  the  party,  or  his  lessee,  a  right 
of  action  against  his  co-tenant,  for  disturbing  his  several  possession.  Keay  v.  Good- 
win, 16  Mass.  1  ;  Clowes  v.  Hawley,  12  Johus.  484  ;  Jackson  v.  Harder,  4  Johns.  202  ; 
Jackson  v.  Vosburg,  9  Johns.  270  ;  Jackson  r.  Livingston,  7  Wend.  141. 

[No  parol  partition  can  avail  unless  it  be  sanctioned  by  a  possession,  sufficient  to  give 
title  under  the  Statute  of  Limitations,  or  by  such  lapse  of  time  as  justifies  a  presump- 
tion, omnia  esse  rite  acta.  Jones  v.  Eeeves,  6  Rich.  132.  A  parol  partition  executed  by 
a  corresponding  possession  is  valid,  though  some  of  the  tenants  elect  to  hold  their 
shares  by  community  of  possession.  McMahan  v.  McMahan,  13  Penn.  State  R.  (1 
Harris,)  376.  And  so,  though  one  of  the  tenants  be  a  feme  covert,  and  another  a  minor. 
Darlington's  Appropriation,  lb.  430. 

In  Massachusetts,  the  statute  of  1850,  ch.  278,  provides  that  the  respondent  in  a  peti- 
tion for  partition,  shall  be  entitled  to  compensation  for  the  value  of  any  improvements, 
put  by  him  or  by  those  under  whom  he  claims,  upon  the  land,  to  which  the  title  was 
believed  to  be  good.  In  Indiana,  the  defendants  in  proceedings  for  partition  may,  before 
the  partition  is  awarded,  bring  to  the  notice  of  the  Court,  any  advancements  made  by 
the  ancestor  to  any  of  the  heirs,  and  such  advancements,  when  the  amount  thereof  has 
been  ascertained,  will  be  taken  into  account  by  the  Court  in  specifying  the  shares  to  be 
assigned  in  the  petition.  Rev.  Stat.  1843,  p.  841,  Kepler  v.  Kepler,  2  Carter,  363.  In 
New  York,  a  tenant,  in  common,  who  makes  advances  and  payments  beyond  his  propor- 
tion towards  the  erection  of  buildings  upon  the  property  held  in  common,  will  not 
thereby  acquire  an  equitable  lien  upon  the  property  unless  there  is  an  express  agreement 
to  that  effect,  or  there  are  some  special  circumstances  giving  to  such  party  peculiar 
equities.  Taylor  v.  Baldwin,  10  Barb.  Sup.  Ct.  582,  626.  Green  v.  Putnam,  lib. 
500.  Thus,  where  large  sums  had  been  expended  by  the  tenants  in  good  faith  for  valu- 
able improvements,  under  the  belief  that  they  were  the  sole  owners,  they  were  allowed 
therefor  on  partition.     Conklin  v.  Conklin,  3  Sandf.  Ch.  64.] 


END    OF    VOLUME  I. 


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